CNS' Double Standard On Violations

It was a big deal at CNSNews.com when Democrats were accused of violating the Logan Act or the Hatch Act -- but when Republicans were accused of violating the the laws, it downplayed them and even questioned their constitutionality.

By Terry Krepel
Posted 8/14/2023

Michael W. Chapman

Speaking with reporters on Thursday, President Donald Trump said that former Secretary of State John Kerry had "violated" the Logan Act by frequently communicating with Iran's government since leaving office in 2017, and he "should be prosecuted on that."

The Logan Act, enacted in 1799, states that private citizens not authorized to do so are not permitted to communicate or negotiate with foreign governments that are in a dispute with the United States. Iran is in a dispute with the United States over its nuclear program and the 2015 Iran nuclear deal, which was partly negotiated by Secretary of State John Kerry and which President Trump repudiated in 2018.

“What I would like to see with Iran, I’d like to see them call me," President Trump told reporters on Thursday. "You know, John Kerry speaks to them a lot. John Kerry tells them not to call. That's a violation of the Logan Act. And, frankly, he should be prosecuted on that."

"But my people don't want to do anything that's -- only the Democrats do that kind of stuff, you know," said Trump. "If it were the opposite way, they’d prosecute him under the Logan Act. But John Kerry violated the Logan Act."

"He's talking to Iran and has been, has many meetings and many phone calls, and he's telling them what to do," said the president. "That's a total violation of the Logan Act."

Patrick Goodenough repeated Trump's accusation in an article a few days later about Secretary of State Mike Pompeo, linking to Chapman's article and writing: "Asked whether Kerry should potentially be prosecuted under the Logan Act – as President Trump suggested last week – Pompeo said he would 'leave to the Department of Justice to make decisions about prosecutions.'"

This isn't the first time CNS has promoted such attacks on Kerry. An October 2018 stenography piece on right-wing radio host Mark Levin's interview with Newt Gingrich quoted Gingrich as saying that Kerry "was never really the American Secretary of State. He was a world Secretary of State, doing good things on behalf of the world. And which is why I don't think you can charge him with the Logan Act because you'd have to be an American in order to be charged with the Logan Act, and Kerry is not psychologically an American." And in a January 2018 column, Allen West argued that Kerry "may very well be in violation of the Logan Act, a punishable felony offense."

But none of these CNS writers mentioned that this "news" organization felt much differently about the Logan Act not that long ago -- when a Trump ally was accused of violating it.

When Michael Flynn -- Trump campaign official who was briefly Trump's national security adviser -- was charged with lying to the FBI regarding his contacts with Russian officials, CNS promoted writers who not only attacked the idea that Flynn might have violated the Logan Act, they attacked the Logan Act itself. A February 2017 column by Cully Stimson and Hans von Spakovsky defending Flynn pooh-poohed the very existence of the Logan Act:

No one has ever been prosecuted under that act (18 U.S.C. §953), which has been roundly (and rightly) criticized by distinguished legal scholars from the left and the right as a content-based restriction on First Amendment rights under the U.S. Constitution.

Keep in mind that this law was passed just a year after the Alien and Sedition Acts.

The Sedition Act of 1798 is probably one of the worst violations of the First Amendment ever passed by Congress. The Logan Act follows pretty closely behind the Sedition Act in its basic abrogation of First Amendment rights and has never been used against the many Americans who may have technically violated it.

Von Spakovsky repeated his attack on the Logan Act in a May 2018 column: "Many are questioning the legitimacy of the FBI’s questioning Flynn, since the questioning was apparently based on a potential violation of the Logan Act, which makes it a crime for unauthorized people to negotiate on behalf of the United States with foreign governments. No one has been successfully prosecuted under the Logan Act since it was passed in 1799. Many scholars believe it is unconstitutional."

And in a December 2018 "news" article, Susan Jones rehashed Fox News host Laura Ingraham's defense of Flynn: "That was a leak of a phone call on American citizen that he had every right to make. It wasn't just that he was a national security advisor. Any American has the ability to talk to any ambassador that they want. They used a law from the 1700s, the Logan Act, that had never been used."

The hypocrisy continued. A May 2019 article by Goodenough amplified Trump's assertion that Kerry violated the Logan Act and quoting current Secretary of State Mike Pompeo saying that he would "leave to the Department of Justice to make decisions about prosecutions." In a February 2020 article, Goodenough repeated that Kerry "met privately with the Iranian foreign minister on several occasions after he left office, prompting Trump to charge, more than once, that Kerry had violated the Logan Act." Goodenough even included a screenshot of the act, though he did note that "no-one has been convicted for violating the act."

The next day, Goodenough declared again that "President Trump on Wednesday accused Sen. Chris Murphy (D-Conn.) – and former Secretary of State John Kerry – of violating a two century-old law by holding meetings with Iranian Foreign Minister Javad Zarif," including once again a full description of the act, while also admitting that "Only two individuals have ever been charged under the act, both in the 19th century, and neither was convicted."

But when the discussion returned to Flynn, the Logan Act was portrayed as something sinister. Susan Jones wrote in an April 2020 article:

General Michael Flynn's attorney Sidney Powell late Wednesday released handwritten notes, reportedly authored by then-FBI Counter-intelligence Director Bill Priestap, that show "abuse of...authority at every turn," as Flynn's attorney put it.

The note reads in part:

"What's our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired? If we get him to admit to breaking the Logan Act, give facts to DOJ & have them decide. Or, if he initially lies, then we present him [redacted] & he admits it, document for DOJ, & let them decide how to address it."

Jones repeated the quote in two other articles that day, portraying the alleged attempt to get Flynn to admit violating the Logan Act as "entrapment."

In May 2020, Melanie Arter uncritically quoted Trump White House press secretary Kayleigh McEnany ranting about this: "Having found no evidence of Russian collusion, the FBI came up with a new, absurd theory that Flynn might have violated the Logan Act, a statute from 1799 that, in its 200 years of existence, had never been used to convict an American citizen, but it was resurrected in the case of lieutenant general Michael Flynn. Michael Flynn didn't violate the Logan Act." Jones returned five days later to quote Republican Sen. Lindsey Graham complaining that the Logan Act was discussed regarding Flynn.

Jones complained the next day that "Washington Post columnist David Ignatius reported that Flynn had called Russian ambassador to the U.S. Sergey Kislyak “several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking.” Ignatius mused on whether Flynn had violated the 'spirit' of the Logan Act." She went on to quote Republican Sen. Mike Lee declaring that "you've got what appears potentially to have been an effort by one administration to interfere with the next legitimately elected administration's ability to conduct foreign policy by threatening or at least investigating with an attempt perhaps to threaten -- a violation of the Logan Act of all things. This is simply stunning."

A day after that, Jones huffed that "Someone leaked Flynn's unmasked name to the Washington Post's David Ignatius, who published a column on Jan. 12, 2017, disclosing Flynn's conversation and musing about whether Flynn had violated the obscure Logan Act."

In June 2020, Arter transcribed a hypocritical rant by Republican Sen. Ted Cruz: "[T]he predicate for all of this is the Logan Act, which you know perfectly well is an unconstitutional law that no one has ever been prosecuted under in the history of the Department of Justice and should have been laughed out of the room. n any responsible Department of Justice if someone had suggested we’re going to go after the incoming national security advisor for violating the Logan Act, which says an American citizen can't talk to a foreign leader, I guarantee you today, right now John Kerry is violating the Logan Act. Now fortunately, It's an unconstitutional law, so who cares?" Jones transcribed a similar Cruz rant he made on Fox News.

In August 2020, Jones went after testimony from former deputy attorney general Susan Yates regarding Flynn and the Logan Act and Graham's response:

Yates told the committee she has a "vague memory" of FBI Director Comey mentioning the Logan Act at the Jan. 5 meeting. The Logan Act, passed in 1799, forbids private citizens from engaging in unauthorized communication with foreign governments.

Graham told Yates he doesn't understand why the Logan Act came up at the meeting:

"You had one administration leaving in two weeks and you had a new administration coming in, urging them, don't escalate. To anyone who thinks that is a violation of the Logan Act, that is stunning as hell -- you cannot hit the ground running."

Jones continued to flog this in an exceedingly lengthy November 2020 article:

Democrat Joe Biden is taking calls from various foreign leaders as he prepares to become president.

But no one is suggesting that he may be violating the Logan Act, an archaic federal law that bars unauthorized American citizens from negotiating with foreign governments.

However, when President Trump’s incoming national security Adviser Michael Flynn spoke to the Russian ambassador twice in late December 2016, the Logan Act was raised a short time later at a Jan. 5, 2017 White House meeting attended by President Obama, Vice President Biden, FBI Director James Comey and others.

“The Logan Act was not used as a basis to go after General Flynn,” Former FBI Deputy Director Andrew McCabe told the Senate Judiciary Committee earlier this week.

But was it used as a reason to keep the Flynn case open, just as FBI agents were about to close it?

For an "archaic" law that nobody has ever been successfully prosecuted under, Jones is sure obsessed with it.

The Hatch Act, too

Just as it's intermittently obsessed with possible violations of the Logan Act, CNS has a similar attitude toward the Hatch Act, which prohibits certain political activities by federal employees. Jones complained in an Oct. 27 article:

The White House website is warning that Republicans "plan to increase inflation and costs" for Americans.

On Thursday morning, the top item on the "Briefing Room" web page -- where White House staffers post statements, “fact sheets,” transcripts, and news releases -- reads as follows:

"Congressional Republicans’ Five-Part Plan to Increase Inflation and Costs for American Families."

"Congressional Republicans have laid out their mega MAGA trickle-down economic plan clearly," the news release says. "Their economic plan will raise costs and make inflation worse. Their five part plan includes:

-- "$3 trillion in tax cuts skewed to the wealthy";

-- "Raising prescription drug costs for millions of seniors" (by repealing the so-called Inflation Reduction Act, which is mostly a green energy bill with a few goodies thrown in to make it seem like cost reduction);

-- "Increasing health insurance premiums" (by repealing the so-called Inflation Reduction Act);

-- "Increasing energy bills in 2023 and beyond (by repealing the clean energy provisions, including tax credits for EVs, provided in the Inflation Reduction Act);

-- "Increasing student loan payments" (by reversing Biden's possibly unconstitutional move to cancel some debt for some students).

(Notably, the news release is not labeled a “fact sheet.”)

According to the U.S. Office of Special Counsel, "The Hatch Act, a federal law passed in 1939, limits certain political activities of federal employees..."

The OSC does not offer specific guidance on the White House "Briefing Room" webpage. However, it does say that all federal civilian executive branch employees, except for the president and the vice president, are covered by the Hatch Act.

[...]

On Wednesday, as the New York Post reported, White House Chief of Staff Ron Klain was warned that he violated the Hatch Act by retweeting a message urging people to purchase “Democrats Deliver” merchandise.

That last criticism was reinforced in an article by Melanie Arter the same day:

White House Chief of Staff Ron Klain was admonished by the Office of Special Counsel on Wednesday for violating the Hatch Act by retweeting a message from his government account from the Democratic group STRIKE PAC that included the statement, “Get your Democrats Deliver merch today.”

The tweet in question, which was posted on May 22, was about delivering infant formula.

White House Press Secretary Karine Jean-Pierre was asked about the Office of Special Counsel’s finding during a gaggle on board Air Force One en route to Syracuse, N.Y.

The press secretary said that the Biden administration takes the Hatch Act more seriously than the Trump administration did.

You will not be surprised to learn that CNS took Hatch Act violations as unseriously as the Trump administration did when Trump was in office. When Trump adviser Kellyanne Conway was found by the Office of Special Counsel in 2019 to have repeatedly violated the Hatch Act and recommended her removal, Jones grumbled that the House Oversight Committee subpoenaed her and that "One Republican, Justin Amash, voted with Democrats." She went on to uncritically quote Republican Rep. Jim Jordan reframing her violations by claiming that "a senior adviser to the president of the United States can sure as heck go on cable news shows and answer questions" and that she's being targeted "not just because she's in the Trump administration, but she's being targeted because she's good at what she does."

(Arter didn't mention Conway's repeated Hatch Act violations in her article on Klain.)

When Secretary of State Mike Pompeo gave a speech from Israel during the 2020 Republican National Convention, Goodenough complained that "some Jewish Democrats, who see it as a ploy to politicize the U.S.-Israel relationship" as well as a possible violation of the Hatch Act, while uncritically repeating Trump administration officials' insistence that Pompeo was giving the speech "in his personal capacity." A couple days later, Melanie Arter played stenographer for a Republican congressman who appeared on Fox News playing whataboutism to deflect from Pompeo:

Former Congressman Trey Gowdy (R-S.C.) said Wednesday that it’s ironic for Rep. Joaquin Castro (D-Texas) to call for an investigation into Secretary of State Mike Pompeo speaking at the Republican National Convention on Tuesday, given that five cabinet-level Democrats spoke during the Democratic National Convention in 2012.

Castro, chairman of the House Foreign Affairs Oversight and Investigation Subcommittee, issued a statement, saying “This action is part of a pattern of politicization of U.S. foreign policy for which President Trump was impeached by the House of Representatives. That undermines America's standing in the world. The American people deserve a full investigation."

[...]

“So if you're going to investigate noncompliance with the Hatch Act, if you’re going to accuse Mike Pompeo, how many cabinet-level officials spoke at the DNC in 2012? Five. So I will trade the power of incumbency. I think people understand incumbents have power – congressional incumbents do, presidential,” he said.

According to the schedule of the 2012 Democratic National Convention, Education Secretary Arne Duncan, Small Business Administration Administrator Karen Mills, VA Secretary Eric Shinseki, Interior Secretary Ken Salazar, and HHS Secretary Kathleen Sebelius - all members of the Obama administration at the time - spoke at the convention headlines by President Barack Obama.

When Pompeo got dinged again for another possible Hatch Act violation in December 2020 by campaigning for Republican candidates in Georgia, Goodenough again rushed to his defense, delcaring:

A non-exhaustive review of travel by Pompeo’s two Democratic predecessors at the State Department finds that Kerry delivered occasional speeches in Massachusetts (including one at Harvard in 2015 and another at MIT in early 2017) and visited a wind technology testing center in Boston with his British counterpart in 2014.

Clinton took part in numerous events in New York City while serving as secretary of state from Jan. 21, 2009 to Feb. 1, 2013 – not including those relating to the United Nations – delivering speeches at policy institutions, schools, galas, benefits, award dinners, and other events.

But it wasn't until the very last paragraph of his 17-paragraph article that Goodenough conceded one major mitigating factor: "Kerry and Clinton did represent Massachusetts and New York respectively during their U.S. Senate careers."

That, in turn, is a change from how it treated the Hatch Act during the Obama administration. For instance, a 2010 article by Fred Lucas suggested that "strict guidelines for the placement, size, and visibility of signs promoting the $862-billion American Recovery and Reinvestment Act" was a Hatch Act violation. And a 2013 article by Craig Bannister touted how "U.S. Sen. Jim Inhofe (O-Okla.) has launched a probe into potential Hatch Act violations by the White House in its climate agenda advocacy."

This tradition continued to CNS' current deprecated form as a right-wing blog. Intern Emma Campbell wrote in a June 13 post:

A government watchdog agency determined this month that White House Press Secretary Karine Jean-Pierre violated the Hatch Act by repeatedly saying “mega MAGA Republicans” in a press conference leading up to the 2022 midterms.

The Office of Special Counsel (OSC), in a letter shared with NBC News, said that Jean-Pierre’s word choice when referring to Republican candidates while acting in her official capacity violated the Hatch Act — a federal law that sets limits on federal employees to prevent them from influencing or interfering with elections.

“Because Ms. Jean-Pierre made the statements while acting in her official capacity, she violated the Hatch Act prohibition against her using her official authority or influence for the purpose of interfering with or affecting the result of an election,” Ana Galindo-Marrone, leader of the Office of Special Counsel’s Hatch Act Unit, wrote in a letter June 7.

The letter continued on to say that the OSC wouldn’t pursue any disciplinary actions against Jean-Pierre aside from a warning letter. Part of the reasoning, Galindo-Marrone wrote, was that the White House legal team “did not at the time believe Ms. Jean-Pierre’s remarks were prohibited,” and that it was “unclear” if Jean-Pierre knew that the phrasing “MAGA Republicans” was not allowed.

Campbell failed to mention that numerous Trump administration officials, including press secretary McEnany, were found to have violated the Hatch Act when in office, which would have been important to put such alleged violations in perspective.