The Statement
A video and social media post claim that Australian Prime Minister Scott Morrison “helped” US president-elect Joe Biden violate the Logan Act when he made a congratulatory phone call to the Democratic leader.
The video was posted to the Facebook page of Riccardo Bosi, a former Army special forces lieutenant-colonel and serial election candidate, who unsuccessfully contested the 2019 federal election for the Australian Conservatives and the 2020 Eden Monaro by-election as an independent.
In October, he ran for the Sunshine Coast seat of Nicklin in the Queensland state election, finishing second last of the six candidates.
The Facebook post includes a caption which reads, “SCOMO HELPED BIDEN VIOLATE THE LOGAN ACT” and a video with the same title as its cover image.
The video features host Joel Jammal, a self-described “political activist and commentator”, claiming “Joe Biden, according to his own standards, violated the Logan Act” by speaking with Mr Morrison.
Mr Jammal refers to the case of former US national security advisor lieutenant-general Michael Flynn, who was charged with lying to the FBI about his dealings with Russian officials.
He says Mr Biden suggested at the time using the Logan Act to target Mr Flynn because “you’re not allowed to interact with foreign leaders, basically, on behalf of America”.
Mr Jammal goes on to say “the Logan Act is an ancient thing (that) doesn’t matter” and instead focuses his criticism on Mr Biden’s alleged hypocrisy, before adding: “The point must be made, both of you (Mr Morrison and Mr Biden) are idiots, how did no one pull you up on this Scott?”
Mr Bosi then says the leaders “breached protocol” by participating in the call and adds “the globalists had outed themselves”.
At the time of publication, the November 16 post had been viewed more than 50,000 times and attracted more than 730 shares and 1400 reactions.
The Analysis
By taking congratulatory phone calls from foreign leaders, Joe Biden did not violate the Logan Act, according to multiple US legal experts. The president-elect’s actions can also not be reasonably compared to those of Michael Flynn, who admitted to lying about his dealings with Russia, they said.
Prime Minister Scott Morrison and US president-elect Joe Biden spoke over the phone on November 12, when Mr Morrison congratulated Mr Biden “on his election”, according to a tweet from the Australian leader.
At a subsequent press conference, Mr Morrison said both leaders reaffirmed their “strong commitment to strengthening our alliance”, adding that the Australian government would work with the US administration “respecting (the) protocols” during the post-election transition period.
It was one of several congratulatory calls fielded by Mr Biden, who spoke with the leaders of Japan, the United Kingdom, France and Germany, among others, following the US election despite President Donald Trump’s refusal to concede.
The claim that Mr Biden potentially breached the Logan Act through the congratulatory conversations before he was sworn in as president began circulating among conservative politicians and commentators well before the call with Mr Morrison.
On November 10, Republican Senator Ted Cruz suggested that Mr Biden’s team had potentially violated the Act – comparing his behaviour to that of Mr Flynn – a theme picked up by Fox News host Sean Hannity on November 11.
Mr Flynn resigned from his role as national security adviser in February 2017 after he admitted he had “held numerous phone calls with foreign counterparts, ministers and ambassadors” and that he “inadvertently” provided “incomplete information” about his calls with the Russian ambassador to then vice president-elect Mike Pence.
He pleaded guilty to falsely stating that the calls didn’t include a request for Russia to refrain from escalating tensions following US sanctions on the country, among other claims. He was never charged with violating the Logan Act.
He later attempted to withdraw the guilty plea, and on November 26 Mr Trump announced he was pardoning Mr Flynn.
The Logan Act was passed by the US Congress in 1798 and formally enacted in 1799 after George Logan, a Pennsylvania state legislator, tried to negotiate with the French government as a private citizen in a bid to prevent a war between the two countries.
The Act’s aim is to prevent any US citizen from undertaking unauthorised negotiations with foreign governments and officials to influence their actions on issues concerning the United States.
Michael W. McConnell, a professor of constitutional law at Stanford Law School, told AAP FactCheck he believed neither Mr Biden nor Mr Flynn violated the Logan Act, although the video could be accused of exaggerating the similarities between the two examples.
Prof McConnell said in an email it was standard practice for the foreign policy officials of an incoming administration to communicate with their foreign counterparts prior to the inauguration.
“The Logan Act does not forbid all communications between Americans and foreign leaders. It prohibits such communications made ‘with intent to influence the 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’,” he said.
“By no possible measure did Biden’s communication fall into that category. Flynn was a closer case, though it would be ridiculous to apply the Act to communications of that sort during the transition.”
Daniel Hemel, a professor of law at the University of Chicago Law School, told AAP FactCheck in an email that Mr Biden had not violated the Logan Act by accepting congratulatory calls from world leaders.
He added that Mr Biden’s conversations weren’t “even remotely comparably” to Mr Flynn’s case as the retired general “allegedly sought to flip votes at the UN Security Council so as to undermine the Obama administration’s Middle East policy”.
Laurence Tribe, a professor of constitutional law at Harvard Law School, agreed, telling AAP FactCheck in an email the suggestion Mr Biden violated the Logan Act by speaking with Mr Morrison was without foundation.
“(The Act) is in no respect applicable to this kind of entirely routine interchange between a president-elect and a foreign prime minister or head of state,” he said.
“It is such a vague and nebulous restriction on discussions by private American citizens with foreign leaders that most constitutional scholars (including me) believe its application would be barred by the first amendment to our constitution.”
It’s not the first time a US political figure has been accused of breaching the Logan Act due to their interactions with Australian representatives.
In 2017, Republican senator John McCain was baselessly accused online of breaching the Act in 2017 after he called Australia’s then ambassador to the US, Joe Hockey, to reassure Australia of the two countries’ longstanding alliance following a tense phone call between Mr Trump and then Australian prime minister Malcolm Turnbull.
Only two cases have ever led to an indictment under the Logan Act and no convictions have ever been recorded in its 221-year history.
The Verdict
Multiple constitutional law experts told AAP FactCheck that president-elect Joe Biden did not violate the Logan Act by taking congratulatory phone calls from foreign leaders, and that it was a false comparison to liken his actions to those of Michael Flynn.
False – Content that has no basis in fact.
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