In an April 6 Wall Street Journal op-ed touted on the Drudge Report and by NBC's Matt Lauer, attorney Robert F. Turner asserted that House Speaker Nancy Pelosi (D-CA) “may well have” violated a federal criminal law, the Logan Act, when she met with Syrian president Bashar Al-Assad on April 4. But at no point did Turner note that the issue of whether a member of Congress has violated the Logan Act has never been adjudicated by a court. Nor did he inform readers of a 1975 State Department statement -- noted in a February 1, 2006, report on the Logan Act by the nonpartisan Congressional Research Service (CRS) -- that states: “The clear intent of this provision ... is to prohibit unauthorized persons from intervening in disputes between the United States and foreign governments. Nothing in [the Logan Act], however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.” Turner purported to know the scope of a member of Congress' legislative duties for purposes of the Logan Act, and to know that Pelosi has acted outside that scope. But he cited no judicial authority for that specific position -- nor could he, since there are no court decisions interpreting that statute as it may apply to actions by members of Congress.

Turner, a former acting assistant secretary of state for legislative affairs in the Reagan administration, noted in his op-ed that the Logan Act (18 U.S.C. 953) “makes it a felony and provides for a prison sentence of up to three years for any American, 'without authority of the United States,' to communicate with a foreign government in an effort to influence that government's behavior on any 'disputes or controversies with the United States.' ” Turner asserted that Pelosi “may well have” violated that act when she, “against the wishes of the president,” traveled to Damascus “to communicate on foreign-policy issues with Syrian President Bashar Assad.”

From his op-ed:

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.

Of course, not all congressional travel to, or communications with representatives of, foreign nations is unlawful. A purely fact-finding trip that involves looking around, visiting American military bases or talking with U.S. diplomats is not a problem. Nor is formal negotiation with foreign representatives if authorized by the president. (FDR appointed Sens. Tom Connally and Arthur Vandenberg to the U.S. delegation that negotiated the U.N. Charter.) Ms. Pelosi's trip was not authorized, and Syria is one of the world's leading sponsors of international terrorism. It has almost certainly been involved in numerous attacks that have claimed the lives of American military personnel from Beirut to Baghdad.

However, a 1975 State Department memo, as quoted in the 2006 CRS report, states the following:

The clear intent of this provision [Logan Act] is to prohibit unauthorized persons from intervening in disputes between the United States and foreign governments. Nothing in section 953, however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution. In the case of [then-] Senators [George] McGovern [D-SD] and [John] Sparkman [D-AL] the executive branch, although it did not in any way encourage the Senators to go to Cuba, was fully informed of the nature and purpose of their visit, and had validated their passports for travel to that country.

Senator McGovern's report of his discussions with Cuban officials states: “I made it clear that I had no authority to negotiate on behalf of the United States -- that I had come to listen and learn....” (Cuban Realities: May 1975, 94th Cong., 1st Sess., August 1975). Senator Sparkman's contacts with Cuban officials were conducted on a similar basis. The specific issues raised by the Senators (e.g., the Southern Airways case; Luis Tiant's desire to have his parents visit the United States) would, in any event, appear to fall within the second paragraph of Section 953.

Accordingly, the Department does not consider the activities of Senators Sparkman and McGovern to be inconsistent with the stipulations of Section 953.

At no point in his op-ed did Turner note the State Department opinion. Instead, Turner, relying on Supreme Court rulings in cases not involving allegations of criminal behavior by members of Congress, simply took the position that Pelosi's meeting with Assad may have exceeded the scope of a member of Congress' permissible legislative duties as they would be construed under the Logan Act. His suggestion that the Logan Act prohibits Pelosi's conduct is based neither on the language of the Act nor case law applying it. He pronounced her behavior “particularly inappropriate,” given a number of factors, including “her position as a national leader,” but also a number of other circumstances that would seem to apply equally to other members of Congress who have met with Assad recently. But the Logan Act does not single out “national leader[s]” as deserving of particular scrutiny, nor even mention them, members of Congress, or the speaker of the House -- who says that she was acting well within her legislative duties. Turner also cited no judicial decision stating what the scope of those duties are for purposes of the Logan Act. Nor could he: As the CRS report noted, “There appear to have been no prosecutions under the Act in its more than 200 year history,” and in the judicial mentions of the statute that CRS noted, none of them construed the Act's effect on members of Congress.

Subsequently, during a discussion with NBC News Washington bureau chief Tim Russert on the April 6 edition of NBC's Today, Lauer noted that Turner's op-ed goes “a step further and suggests [Pelosi's] trip may have actually been a felony, that it may have violated something called the Logan Act.” As of 7:57 a.m. ET on April 5, internet gossip Matt Drudge had linked to Turner's op-ed with the headline “WSJ: 'Pelosi may well have committed a felony in traveling to Damascus'...”

From the April 6 edition of NBC's Today:

LAUER: So let's get to some of the comments here. Vice President Cheney called Nancy Pelosi's trip to Syria, quote, “bad behavior.” A Washington Post editorial on Thursday called it, quote, “counterproductive and foolish.” An op-ed in The Wall Street Journal this morning goes a step further and suggests her trip may have actually been a felony, that it may have violated something called the Logan Act. Tim, is this the way the Democrats wanted to get off the mark in terms of foreign affairs?

RUSSERT: No, they clearly wanted to distinguish themselves from the president's policies. But you have to be careful, as [former] Congressman [Lee] Hamilton [D-IN] suggested. One ranking Democrat, Matt, said, 'We have a Democratic alternative foreign policy.' That is going to be very difficult to articulate and to put into place when you don't control the White House. On the other hand, Speaker Pelosi issued a statement last night on behalf of the bipartisan delegation that she is leading. Her delegation includes Republican congressmen. She's saying she's done nothing wrong or inconsistent with American foreign policy.