In a radio interview with Hugh Hewitt, former Secretary of State John Kerry admitted that he’s been working behind-the-scenes to salvage the Iran nuclear deal. “What I have done is tried to elicit from him what Iran might be willing to do in order to change the dynamic in the Middle East for the better,” he explained. Kerry’s backchannel with Iranian Foreign Minister Mohammed Javad Zarif has not been a one-time deal. “I think I’ve seen him three or four times,” Kerry said, and acknowledged that his talks were occurring without the Trump administration’s approval.
Kerry has always been an arrogant and aloof man. During his long career on Capitol Hill, Senate colleagues on both sides of the aisle described him as the least-liked senator, an opinion repeatedly affirmed by his own office staff during his long career. He is disdainful of democracy. Simply put, he sees himself as above the law, deserving of privilege and special dispensation not only when he is in government, but also as a private citizen.
Perhaps Kerry believes he is not violating the Logan Act of 1799 which states that: “Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.”
There are exceptions, of course. Private citizens can register as foreign agents under the Foreign Agents Registration Act. This covers not only formal lobbying, but also providing advice to foreign governments or individuals about how to change or circumvent U.S. law. Indeed, a tangent of special counsel Robert Mueller’s investigations into the Trump administration has been the numerous potential FARA violations on behalf of individuals working for Russia, Turkey, the United Arab Emirates, and Israel.
Other exceptions exist as well. In 1994, former President Jimmy Carter conducted sensitive negotiations with North Korea’s leader Kim Jong Il at the height of a crisis that the Clinton administration feared might lead to war. Many on Clinton’s team believed Carter overstepped his mandate, but he did coordinate his trip and actions with the White House. Years later, Bill Clinton sought dispensation to travel to North Korea as well but when the Obama administration demurred, he canceled his trip.
Kerry is personally invested in the Iran nuclear deal (Joint Comprehensive Plan of Action, or JCPOA), from which President Trump walked away. The wisdom of Trump’s action is open to debate, but what is not is this: Trump won the 2016 election. He made clear during his campaign that he opposed the JCPOA, just like Obama made clear during his campaign that he supported outreach to Iran. There was no deception on either man’s part. And Trump’s decision to walk away from the JCPOA is not illegal. Julie Frifield, assistant secretary of state for legislative affairs under Kerry, acknowledged the JCPOA was unsigned and “neither a treaty nor an executive agreement.” In other words, it had the same status as the Bush-era agreements with the Czech Republic and Poland for anti-missile defenses which Obama voided when he came to office.
There has been a temptation among polemicists on both the Right and Left to criminalize the policy debate, and this is unfortunate. But that does not mean anyone should get a free pass for what appears to be criminal activity. If Kerry wants to criticize Trump for walking away from the JCPOA, he is free to do so. And if he wants to plot and plan with Zarif, he can register as a foreign agent on behalf of Iran. But he should not remain above the law. To allow him to do so sets a horrible precedent for any future administration, for American democracy, and for coherence of U.S. policy. It is time both Kerry and the Justice Department understood that.