Did Elon Musk's Alleged Call With Putin Violate The Logan Act?

An unconfirmed report that Elon Musk spoke directly with Russian President Vladimir Putin ahead of posting his controversial peace proposal for the Ukraine war has sparked social media discussions on whether the Tesla and SpaceX CEO could have violated federal U.S. law.

Ian Bremmer, the founder and president of the Eurasia Group, wrote in a mailout to the firm's subscribers that Musk told him that Putin was ready to take part in negotiations, Vice reported. Putin's terms, according to Musk, were that the occupied Crimean peninsula be formally part of Russia, Ukraine should adopt a neutral status and that Ukraine should recognize Russia's proclaimed annexation of four regions, Bremmer reportedly wrote.

Musk posted a peace proposal on Twitter last week that suggested formal recognition of Crimea as part of Russia, an assured water supply to Crimea, a neutral status for Ukraine and redoing the referendums under United Nations supervision in the four regions Russia has declared annexed despite global outcry. Musk, who has faced strong criticism from Ukraine and some Western officials over the proposal, denied the report that he spoke directly with the Russian president ahead of making the Twitter post.

"No, it is not," he tweeted in response to a question asking if the Vice report was true. "I have spoken to Putin only once and that was about 18 months ago. The subject matter was space."

Still, some Twitter users asked if Musk's alleged conversation with Putin, if true, could be a violation of the Logan Act.

The law states that 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 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, shall be fined under this title or imprisoned not more than three years, or both."

But as many details of the alleged call remain unknown, and Musk himself has denied that it ever took place, the prospects for an investigation into what some have said is a potential violation of the Logan Act remained unclear.

Bill Dunlap, a law professor at Quinnipiac University, told Newsweek that if Musk actually spoke with Putin despite his denial "he may very well have violated the terms of the Logan Act."

"His alleged behavior appears to satisfy every element of the federal offense," Dunlap explained. "Musk is a citizen of the United States, and the alleged conversation (which he denies) with Putin would constitute 'any correspondence or intercourse with a foreign government or any officer or agent thereof . . ..' Based on what little we know about the content of the conversation, a court or jury could infer that Musk's intent was to 'influence the measures or conduct' of Russia in the Ukraine war, which is the subject of 'disputes or controversies' with the United States, 'or to defeat the measures of the United States.'"

Dunlap added that he had "no firsthand evidence that Musk is 'without authority of the United States' to carry on this dialogue with Putin, but I have not heard that he does."

"If he does, as a matter of common sense he would have mentioned that before denying the conversation," he added. "And if he does, he will not be prosecuted by the government that authorized him."

The act itself seems to be rarely cited and almost never used. A 2015 study from the Congressional Research Service said that though the Logan Act was meant to bar U.S. citizens without authority from interfering in relations between the U.S. and foreign governments, "there appear to have been no prosecutions under the act in its more than 200-year history."

"However, there have been a number of judicial references to the act, and it is not uncommon for it to be used as a point of challenge concerning dealings with foreign officials," the study added.

Dunlap noted that the Logan Act itself could be unconstitutional, "which could account for its disuse over the centuries."

"The act may run afoul of the first amendment by restraining speech based on its content. This sort of restraint is usually subject to strict scrutiny, which requires the government to show that the law is the least restrictive way to achieve a compelling governmental interest. Even if the act's apparent goal of preventing interference with U.S. foreign policy is a compelling one, its means are clearly not the least restrictive."

Dunlap cited a potential example of a basketball fan writing to Putin to encourage him to release WNBA star Brittney Griner, who is currently imprisoned in Russia.

"This would be enough to invalidate most such content-based restrictions, but because the speech in question occurred overseas and was directed to an overseas audience, the courts could treat the federal law with greater deference," he said.

Newsweek reached out to the Kremlin for comment.

Updated 10/12/2022, 3:20 p.m. ET: This story has been updated with comments from Bill Dunlap.