A Legal Analysis of Rep. Tulsi Gabbard’s Trip to Syria

By Ryan Scoville
Tuesday, February 14, 2017, 8:00 AM

Rep. Tulsi Gabbard (D-HI) has drawn attention in recent weeks for leading a delegation to Syria and Lebanon, where she reportedly met with government leaders, refugees, and members of civil society. The stated purposes were to engage in fact-finding and promote an end to the Syrian war, but details about the trip have raised questions about its wisdom and legality. In this post, I’ll elaborate on the relevant legal issues and supplement the news coverage by offering additional context for what’s taken place.

By way of background, Rep. Gabbard’s trip has proven controversial for a number of reasons: She reportedly declined to inform House leadership in advance, met with Bashar al-Assad, toured with officials from a Lebanese political party that actively supports Assad, and received funding from an American organization that counts one of those same officials as its executive director. Moreover, both before and after traveling to Syria, the congresswoman channeled some of Assad’s positions on the war in statements to the public. Two weeks ago, amid mounting scrutiny, she pledged personally to reimburse her sponsor, but critics have continued to denounce the trip and Rep. Gabbard for violating the Logan Act and House ethics rules. The arguments so far have been unpersuasive, but commentators have neglected an important angle of approach, as I explain below.

The Logan Act

For better or worse, it’s hard to take the Logan Act seriously. The statute authorizes criminal penalties against any U.S. citizen 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, with intent to influence measures or conduct of any foreign government or of 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 . . . .

A violation is certainly conceivable, given this language. Rep. Gabbard reportedly met with not only Assad, but also the president and prime minister of Lebanon, and she may have done so “with intent to influence measures or conduct” of those governments in relation to the war. But a prosecution would encounter at least two major problems.

First, as Steve Vladeck has argued, the text is so vague that it might be unconstitutional. This is true in several respects, but for present purposes, the most critical source of uncertainty is the phrase “without authority of the United States,” which reasonably could refer to communicative acts that are undertaken (1) without official authorization of any kind, (2) without authorization from the executive branch, (3) in a private or unofficial capacity, or (4) all of the above.

Rep. Gabbard’s case fully exploits this uncertainty. The trip, like many others by members of Congress, had an ambiguous status, being neither official nor unofficial but instead “officially-connected.” According to the House Ethics Manual, this type of travel occurs when the funding comes from a private source but the “subject matter . . . [is] related to the official duties of the participating” legislator.

Whether Rep. Gabbard acted with official approval also remains hazy. On one hand, she didn’t seek authorization from the Speaker of the House, and it’s been reported that neither the State Department nor the Defense Department were involved in the planning. On the other hand, Rep. Gabbard appears to have obtained prior authorization from the House Committee on Standards of Official Conduct, and it’s plausible that the Administration quietly endorsed the trip: The Pentagon knew about it in advance, and yet there’s no public evidence of an objection. When asked for the Administration’s position on the matter, officials at both the State Department and the Defense Department declined to comment. What’s more, Rep. Gabbard’s views on Syria generally align with those of Trump, she met with the President shortly after his election, and she made the trip only weeks after that meeting. In these circumstances, it’s hardly straightforward that she acted “without authority of the United States.”

The second major problem is that the Logan Act carries substantial socio-legal baggage. As many are aware, it was enacted in 1799, but has not once served as the basis for the conviction or even the indictment of a federal legislator, and this notwithstanding a long tradition of independent diplomatic initiatives by members of Congress, and notwithstanding a comparably long (albeit sporadically upheld) tradition of Logan Act-based objections to those initiatives. The categorical absence of recent enforcement history is particularly noteworthy in light of the apparent ubiquity of plausible enforcement opportunities. It’s not uncommon, for example, for federal legislators to visit foreign countries and government officials with whom the United States lacks amicable relations. My own research suggests that, from 2009 to 2012, members of the House and Senate made over forty trips to Damascus alone. Nor is it unheard of for legislators to make these trips in the face of opposition from the executive branch. To name just one example, then-Senator John Kerry made two trips to Syria in the mid-2000s, each time meeting with Assad over the objections of the Bush Administration. Nor, finally, is it uncommon for legislators to take these trips in a non-official capacity. In 2011, then-congressman Dennis Kucinich not only went to Syria, but also relied upon financial support from the very group that initially financed Rep. Gabbard’s delegation. Yet none of these incidents triggered an indictment. I can’t imagine a different result here.

The Constitution

In addition to the Logan Act, there are conceivable constitutional objections that Rep. Gabbard’s trip (1) infringed the president’s power to conduct international diplomacy and, even if compatible with Article II, (2) lacked an affirmative basis in Article I. But neither seems persuasive. As long as she purported to speak only on her own behalf, Rep. Gabbard’s communications with Syrian and Lebanese government officials would not intrude upon the president’s diplomacy power, which confers a prerogative simply to communicate on behalf of and otherwise represent the United States. Moreover, Article I generally purports only to delimit the powers of Congress as an institution, rather than restrict the conduct of its individual members. For that reason, I would contend that Rep. Gabbard didn’t need an Article I justification.

The harder question is whether it’s lawful for Congress itself to facilitate international diplomacy by its members. As I have argued elsewhere, the principle of enumerated powers does apply here, but its effect probably depends, as is often the case, on an interpreter’s preferred modalities of constitutional argument. To summarize, those who prioritize text might reasonably object to institutional involvement for lack of an affirmative foundation in Article I, depending on the purposes of the diplomacy in question. Institutional support for member diplomacy as a form of extraterritorial fact-finding, for example, might be permissible given Congress’s robust powers of investigation, but support for member diplomacy as a means of lobbying foreign governments may be more problematic due to the weaker textual basis for that function. In contrast, those who are comfortable with non-textual sources of meaning, such as historical practice, might fairly conclude that institutional involvement is permissible as customary and valuable.

House Ethics Rules

The most plausible source of trouble seems to be the House Rules, but not for the reason discussed in the press. Recent reports suggest that Rep. Gabbard violated Rule 25.5(b) by failing to disclose her expenses and itinerary within 15 days of her return. But this Rule, which imposes one of a series of restrictions on the receipt of “gifts,” most sensibly applies when a legislator has not only received but also kept outside funding for travel expenses. Because Rep. Gabbard is personally reimbursing her sponsor, she hasn’t received a gift in any meaningful sense. I would think that 25.5(b) ceases to apply in these circumstances.

The better argument is that Rep. Gabbard may have violated a separate set of rules, reimbursement notwithstanding. The House Ethics Manual provides that the purpose of a delegation dictates the funding source: Where the purpose is limited to official business, all funding must come from the U.S. Government. Where official business is the “primary purpose,” public funds must pay for airfare and “all other travel expenses incurred in accomplishing” that purpose. Where official business is merely a “secondary purpose,” public funds must still be used, but only for associated “meal, lodging, or other travel expenses.” In all cases, the member must determine the purpose(s) of her travel “in a reasonable manner” and in light of factors such as the “number of days to be devoted to each purpose.”

While mundane in content, these rules serve an important function. Under the Mutual Security Act of 1954, any use of government funds for foreign travel requires prior authorization from the Speaker of the House or a committee chairperson. In this way, federal law empowers congressional leadership to screen and even veto plans for official diplomacy by individual members of Congress, while preserving member independence with respect to less consequential forms of international activity. By disciplining the determination of purpose, the ethics rules protect against the artificial circumvention of the statute. Thus, it’s problematic for a legislator to counterfactually deny that any of her purposes are official in nature because doing so makes it harder for congressional leadership to control the practice of legislative diplomacy with respect to matters of national interest.

Yet it appears that this is what happened here. By relying exclusively on a private donor and then personal funds, Rep. Gabbard has implied that, in her judgment, official business was not even a secondary purpose of her delegation. From what we know, however, the trip is materially indistinguishable from many of the hundreds of official delegations that travel abroad each year on public funding: The most frequent goal of this activity is fact-finding. By Rep. Gabbard’s own admission, the same is true in her case. Moreover, it’s hard not to see an official purpose in the types of meetings that occurred, particularly given that the congresswoman has publicly criticized U.S. policy on Syria and sponsored legislation to ban U.S. weapons transfers to the rebels. By nevertheless acting as if she had no official aim whatsoever, Rep. Gabbard managed to avoid public funding and thus deny House Speaker Paul Ryan and relevant committee chairs an opportunity to veto her plans.

Will anything come of this? In theory, the House could impose disciplinary measures, but Rep. Gabbard’s trip doesn’t seem to be the type of conduct that warrants anything close to a severe response. Yes, she circumvented congressional leadership. And yes, she met with a notorious war criminal. But she appears to have been driven by genuine concern about U.S. policy and the conditions in Syria, rather than self-aggrandizement or other improper motives. The Committee on Standards of Official Conduct might conceivably issue a letter of reproval or informally communicate an objection, but it’s hard to envision much more than that.