Gov. Newsom's tariff gambit risks violating federal law

California Gov. Gavin Newsom's tough talk about seeking to protect California companies from foreign retaliatory tariffs is seen by many as political posturing in advance of a future presidential run. But if the governor actually follows through on his bold statements and tries to work with foreign governments to protect California against the fallout from the trade war, he is almost certainly violating federal law and the U.S. Constitution and could even face criminal prosecution from the Trump Administration.

The Logan Act, enacted in 1799 and codified at 18 U.S.C. § 953, prohibits any U.S. citizen from engaging in "correspondence or intercourse" with foreign governments intended to "defeat the measures of the United States" without the authority of the U.S. This law was designed to ensure that the federal government, and not private citizens or state governors, maintains control over foreign policy. Newsom's remarks, particularly his statements to foreign governments "calling for California-made products to be excluded from any retaliatory measures" and "directing his Administration to identify collaborative opportunities with trading partners that protect California's economic interests," come perilously close to violating the plain meaning of this law.

To be sure, accusing each other of violating the Logan Act is a favorite tactic of politicians from both parties. For instance, former UN ambassador and Biden White House aide Susan Rice accused Trump of violating the Logan Act due to contacts with Russia after he left the presidency in 2020. Meanwhile, Trump himself accused John Kerry, former Secretary of State, of Logan Act violations due to Kerry's contacts with Iran during Trump's presidency. But despite these public accusations, no one was prosecuted for any of these actions, and, indeed, no one has ever been prosecuted successfully during the law's 226-year history.

The most important reason why is that the First Amendment's free speech clause protects a U.S. citizen's right to criticize U.S. foreign policy, even when speaking to foreign leaders. This includes Newsom's right to criticize President Trump's tariffs and advocate for California's economic interests. To the extent that the Logan Act is used to prohibit this type of speech, it would likely be struck down as content-based discrimination against political speech in violation of the First Amendment.

But the Supreme Court has also ruled that the government can punish speech if that speech is intertwined with otherwise illegal conduct. In Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), the court upheld the prosecution of a non-governmental organization for providing "material support" to members of a designated foreign terrorist organization by providing training on the laws of war and on how to petition international organizations for support. This precedent suggests that while political speech is protected, the protection is not absolute if the speech had a close nexus with outcomes that would undermine U.S. foreign policy. The court made clear that independent speech, such as Newsom's criticism of the tariffs, is fully protected. But Newsom's pursuit of "strategic relationships" through possible negotiations with foreign governments over tariff policy could be interpreted as crossing that line. Because negotiating exemptions to retaliatory tariffs for California alone could undermine the president's strategy of using tariffs to bargain on behalf of the U.S., the court may not give Newsom's efforts to work out agreements with foreign governments full free speech protection.

To be sure, a Logan Act prosecution is almost unheard of, and the free speech obstacles to such a case would be considerable. For that reason, no one has even been charged for a Logan Act violation in the 20^th or 21^st centuries. But there is reason to think the current administration will not be shy to use the Logan Act, even against Newsom. In a 2020 memorandum, the Office of Legal Counsel at the Trump Administration's Department of Justice affirmed the Logan Act's constitutionality and acknowledged that violations remain possible, particularly when public officials engage in statements that could be interpreted as diplomatic in nature. Importantly, the opinion also suggested that such prosecutions would not necessarily face immediate judicial blowback, indicating a potential willingness to pursue cases under the Logan Act, even if they are historically rare.

Even putting the Logan Act to one side, if Newsom negotiates a binding agreement with a foreign government, he will also likely run afoul of the Compact Clause of the Constitution, which requires states to obtain the consent of Congress before entering into any agreement or compact with a foreign power. During Trump's first term, the federal government sued California seeking to invalidate its agreements to work with Quebec to achieve climate change goals (United States v. California, 444 F. Supp. 3d 1181 (E.D. Cal. 2020)). A federal court dismissed that lawsuit holding that the challenged agreement did not "encroach upon federal sovereignty" nor did they contain indicia of a compact because among other conditions, the challenged agreement did "not require reciprocal action to take effect."   A specific agreement between California and a foreign country to win tariff relief would be the type of state-level foreign policy the Constitution clearly prohibits.

Gov. Newsom has good reasons to make statements about pursuing exemptions from tariffs and establishing "strategic relationships" with foreign governments in order to support California companies, and his speech is fully protected by the First Amendment. But if he were to try to make good on those promises by engaging in negotiations aimed at winning tariff relief for California, it would likely violate the Logan Act as well as the Compact Clause of the Constitution. While the likelihood of prosecution under the Logan Act is not high based on historical practice, the 2020 DOJ opinion suggests that such a scenario is no longer out of the question.