Q: Was Speaker Pelosi’s trip to Syria legal?
A: This column does not do politics. Thus, we must approach this thorny political issue as dispassionately as possible. Whether it was the right thing, politically, for Speaker Pelosi to visit Syria recently is of no concern to Sidebar. The legality of her trip, however, is highly relevant to this column.
A very brief review of the facts: A week or so ago, the Speaker of the House, while on “Spring Break,” took the opportunity to meet with the head of state of Syria. Unless you have been under a rock for the last decade, you know that Syria has been rather naughty, as geopolitics go. While visiting with the dignitaries there, Speaker Pelosi clearly discussed how Syria and the U.S. could cooperate in bringing peace to the beleaguered Middle East. She announced that, not only is Syria ready to talk peace – something the current, official U.S. foreign policy does not agree with – and wrongly informed Syria that Israel is ready too. Both sides of the political aisle have roundly criticized her jaunt overseas.
The legal analysis of her trip requires us to consider at least two legal constructs. First, as usual is the Constitution of the U.S.: does the Constitution validate Speaker Pelosi’s outing? Short answer: no. The Constitution has exactly one sentence regarding the Speaker of the House: he/she is to be elected by the rest of the members of the House of Representatives. That is about her entire Constitutional role. Matters of foreign policy come in to play only when legislation is introduced touching upon it, usually (in the House of Representatives) in the form of an appropriations bill or War declaration. The Senate has slightly more foreign policy forays, but are themselves Constitutionally limited to giving advice and consent to the President when treaties are to be ratified. Still, no one within the legislative branch is authorized to meet, greet, negotiate, or communicate with foreign heads of state. Article II, Section 3 requires that the President “receive ambassadors and other public Ministers.” In other words, the President is the official head of state, the one to whom all other nations are to officially communicate to the United States. Not a member of Congress.
The second area of analysis is the United State Code: is there any law that makes her trip illegal? Maybe. Members of Congress are permitted to travel on “junkets,” or fact-gathering missions, paid for with tax dollars, designed to inform the legislator about a given topic. In that sense, if Madam Speaker had some legislation pending that could be informed by this trip, then it is most certainly legal. But, that is not what appears to have happened here. Instead of researching a particular bill, it appears that Ms. Pelosi was actively teaching a foreign head of state about U.S. foreign policy.
Perhaps most stark is the language of “The Logan Act” (18 U.S.C. § 953). The Logan Act makes it a crime, punishable by fine or three-year imprisonment, for any citizen, absent the authority of the U.S., to interact with a foreign government, “with [the] intent to influence the measures or conduct of any foreign government . . . in relation to any disputes or controversies with the United States.” Ms. Pelosi met with representatives of the Secretary of State who briefed her on her trip, but there is no report that her meetings with the foreign head of state were expressly authorized to represent the U.S. Whether Ms. Pelosi had the actual intent to “influence the measures or conduct of any foreign government” may be impossible to prove. Nonetheless, what is clear is that the Speaker of the House – a legislative, predominantly domestic, representative member of government – acts extra-constitutionally by meeting with a foreign head of state. Discussing points of foreign policy comes mere millimeters from potentially felonious conduct.
Of course, it is unlikely that Patrick Fitzgerald or any other independent prosecutor will investigate Ms. Pelosi’s trip. Still, whether or not our government is split politically, it is of paramount importance that the unique roles assigned to our branches of government be honored. The Union suffers when politics trump the Constitution.
A: This column does not do politics. Thus, we must approach this thorny political issue as dispassionately as possible. Whether it was the right thing, politically, for Speaker Pelosi to visit Syria recently is of no concern to Sidebar. The legality of her trip, however, is highly relevant to this column.
A very brief review of the facts: A week or so ago, the Speaker of the House, while on “Spring Break,” took the opportunity to meet with the head of state of Syria. Unless you have been under a rock for the last decade, you know that Syria has been rather naughty, as geopolitics go. While visiting with the dignitaries there, Speaker Pelosi clearly discussed how Syria and the U.S. could cooperate in bringing peace to the beleaguered Middle East. She announced that, not only is Syria ready to talk peace – something the current, official U.S. foreign policy does not agree with – and wrongly informed Syria that Israel is ready too. Both sides of the political aisle have roundly criticized her jaunt overseas.
The legal analysis of her trip requires us to consider at least two legal constructs. First, as usual is the Constitution of the U.S.: does the Constitution validate Speaker Pelosi’s outing? Short answer: no. The Constitution has exactly one sentence regarding the Speaker of the House: he/she is to be elected by the rest of the members of the House of Representatives. That is about her entire Constitutional role. Matters of foreign policy come in to play only when legislation is introduced touching upon it, usually (in the House of Representatives) in the form of an appropriations bill or War declaration. The Senate has slightly more foreign policy forays, but are themselves Constitutionally limited to giving advice and consent to the President when treaties are to be ratified. Still, no one within the legislative branch is authorized to meet, greet, negotiate, or communicate with foreign heads of state. Article II, Section 3 requires that the President “receive ambassadors and other public Ministers.” In other words, the President is the official head of state, the one to whom all other nations are to officially communicate to the United States. Not a member of Congress.
The second area of analysis is the United State Code: is there any law that makes her trip illegal? Maybe. Members of Congress are permitted to travel on “junkets,” or fact-gathering missions, paid for with tax dollars, designed to inform the legislator about a given topic. In that sense, if Madam Speaker had some legislation pending that could be informed by this trip, then it is most certainly legal. But, that is not what appears to have happened here. Instead of researching a particular bill, it appears that Ms. Pelosi was actively teaching a foreign head of state about U.S. foreign policy.
Perhaps most stark is the language of “The Logan Act” (18 U.S.C. § 953). The Logan Act makes it a crime, punishable by fine or three-year imprisonment, for any citizen, absent the authority of the U.S., to interact with a foreign government, “with [the] intent to influence the measures or conduct of any foreign government . . . in relation to any disputes or controversies with the United States.” Ms. Pelosi met with representatives of the Secretary of State who briefed her on her trip, but there is no report that her meetings with the foreign head of state were expressly authorized to represent the U.S. Whether Ms. Pelosi had the actual intent to “influence the measures or conduct of any foreign government” may be impossible to prove. Nonetheless, what is clear is that the Speaker of the House – a legislative, predominantly domestic, representative member of government – acts extra-constitutionally by meeting with a foreign head of state. Discussing points of foreign policy comes mere millimeters from potentially felonious conduct.
Of course, it is unlikely that Patrick Fitzgerald or any other independent prosecutor will investigate Ms. Pelosi’s trip. Still, whether or not our government is split politically, it is of paramount importance that the unique roles assigned to our branches of government be honored. The Union suffers when politics trump the Constitution.
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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.
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