Prosecute Pelosi's crime (updated)

Robert F. Turner is a heavyweight* in the world of law and diplomacy, and he thinks Nancy Pelosi may have committed a felony violation of the Logan Act in her trip to Damascus.  In a column in the of the Wall Street Journal website (just posted to the free Opinionjournal section) , he presents the a cogent case for prosecuting Pelosi, drawing on the original legislative debate on the Logan Act.

In proposing the law, Rep. Roger Griswold of Connecticut explained that the object was, as recorded in the Annals of Congress, "to punish a crime which goes to the destruction of the executive power of the government. He meant that description of crime which arises from an interference of individual citizens in the negotiations of our executive with foreign governments." [....]

In Marbury v. Madison, Chief Justice John Marshall used the president's authority over the Department of State as an illustration of those "important political powers" that, "being entrusted to the executive, the decision of the executive is conclusive." And in the landmark 1936 Curtiss-Wright case, the Supreme Court reaffirmed: "Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it."

Ms. Pelosi and her Congressional entourage spoke to President Assad on various issues, among other things saying, "We came in friendship, hope, and determined that the road to Damascus is a road to peace." She is certainly not the first member of Congress -- of either party -- to engage in this sort of behavior, but her position as a national leader, the wartime circumstances, the opposition to the trip from the White House, and the character of the regime she has chosen to approach make her behavior particularly inappropriate.
I cannot endorse the course of action proposed: appointing Patrick Fitzgerald as Special Prosecutor. Special Prosecutors are a flawed approach, and their work is subject to great abuse. Fitzgerald in particular has lost my confidence as an impartial and conscientious prosecutor. Of course, President Bush will be denounced if the DoJ opens an investigation. But the case seems rather plain, and the president will always be attacked no matter what he does.

*Professor Turner was acting assistant secretary of state for legislative affairs in 1984-85 and is a former chairman of the ABA standing committee on law and national security.

Update: Greg Richards suggests a way to proceed with a prosecution that does not involve a Special Prosecutor:

The way to do it?

Have Condi write a referral to the Justice Department that Nancy had interfered with the official duties of the Department of State and with her as the Secretary of State and is in violation of the Logan Act.
Robert F. Turner is a heavyweight* in the world of law and diplomacy, and he thinks Nancy Pelosi may have committed a felony violation of the Logan Act in her trip to Damascus.  In a column in the of the Wall Street Journal website (just posted to the free Opinionjournal section) , he presents the a cogent case for prosecuting Pelosi, drawing on the original legislative debate on the Logan Act.

In proposing the law, Rep. Roger Griswold of Connecticut explained that the object was, as recorded in the Annals of Congress, "to punish a crime which goes to the destruction of the executive power of the government. He meant that description of crime which arises from an interference of individual citizens in the negotiations of our executive with foreign governments." [....]

In Marbury v. Madison, Chief Justice John Marshall used the president's authority over the Department of State as an illustration of those "important political powers" that, "being entrusted to the executive, the decision of the executive is conclusive." And in the landmark 1936 Curtiss-Wright case, the Supreme Court reaffirmed: "Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it."

Ms. Pelosi and her Congressional entourage spoke to President Assad on various issues, among other things saying, "We came in friendship, hope, and determined that the road to Damascus is a road to peace." She is certainly not the first member of Congress -- of either party -- to engage in this sort of behavior, but her position as a national leader, the wartime circumstances, the opposition to the trip from the White House, and the character of the regime she has chosen to approach make her behavior particularly inappropriate.
I cannot endorse the course of action proposed: appointing Patrick Fitzgerald as Special Prosecutor. Special Prosecutors are a flawed approach, and their work is subject to great abuse. Fitzgerald in particular has lost my confidence as an impartial and conscientious prosecutor. Of course, President Bush will be denounced if the DoJ opens an investigation. But the case seems rather plain, and the president will always be attacked no matter what he does.

*Professor Turner was acting assistant secretary of state for legislative affairs in 1984-85 and is a former chairman of the ABA standing committee on law and national security.

Update: Greg Richards suggests a way to proceed with a prosecution that does not involve a Special Prosecutor:

The way to do it?

Have Condi write a referral to the Justice Department that Nancy had interfered with the official duties of the Department of State and with her as the Secretary of State and is in violation of the Logan Act.