Russian Meddling in our Elections
(NOTE: this article was written substantially in the form below long before — mostly about a year before — the Special counsel’s Report was released in April, 2019)
When Special Counsel Robert Mueller indicted 13 Russians for meddling in the US elections the questions raised were:
1. What did they do that was unlawful?
2. And did they do anything that our own established political parties, or any other American could not have done legally?
Well, they organized rallies and disseminated disinformation and misleading and false propaganda — typical All-American political practice, Karl Rove or Swiftboat Veterans style; no different than has been perpetrated quite legally by homegrown political consultants and operatives all along in all US elections under our totally undemocratic election system. Disinformation comes in various forms: conspiracy videos on YouTube, fake interest groups on Facebook, and armies of bot accounts that can* hijack a discussion on Twitter. This is routine American “dirty politics.” Any or all of this could have been done legally (and, who knows, maybe was done) by the Trump campaign itself. And none of this is illegal — if done by Americans, no matter how nefarious, misleading or unfair. American political consultants are really good at it; probably a lot better than the Russians. The crime committed by the Russians was that they were the source and they did it and they paid for it. If the Democrats or Republicans did exactly the same thing it would be legal.
Was it illegal for Donald Trump, Jr. and other campaign aids to meet with a Russian lawyer in Trump Tower during the campaign to get negative information about Hillary Clinton? According to federal law (52 US Code sec 30121) it is illegal for “a person” to accept or receive a contribution of money or “something of value” from a foreign National in connection with an election. Whether something as nebulous as information itself falls within the meaning of “something of value” may be debatable, especially if nothing of value was actually received, but what does not seem debatable is that to prohibit and penalize obtaining and disseminating information pertinent to a candidate or a political campaign, is patently government censorship in violation of the First Amendment. It is still unconstitutional censorship in violation of the First Amendment even if the information comes from a foreign source. Suppose the information revealed treason by a candidate. Would it be constitutional to suppress (sensor!) this information that a political campaign learned from a foreign source? I don’t think so. Suppose that the Clinton campaign had learned from a foreign source that Trump had conspired with the Russians to remove sanctions once he was elected if they helped him in the election. Would it be unlawful for Clinton to reveal what her campaign learned from this foreign source? Would it still be unlawful to reveal that to the electorate just because the information came from a foreign source? See an in-depth analysis of the law and its constitutional defect in UCLA law professor, Eugene Volokh’s commentary published July 12, 2017 in Washington Post. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/12/can-it-be-a-crime-to-do-opposition-research-by-asking-foreigners-for-information/?tid=ss_mail&utm_term=.6fff408f8a7d
Another telling question on the collusion issue is: What exactly is it alleged that the Trump campaign did to collude with the Russians other than obtaining negative information that the Russians had on the opposition?
The alleged Russian interference was conducted long distance on the internet and on social media. Was there a conspiracy or “collusion” as is widely speculated? We will have to wait and see what the Mueller team comes up with. In the meantime, we are left to wonder: What kind of help or cooperation did the Russians need from the Trump campaign to carry out this kind of interference? What help or cooperation did the Trump campaign need or receive from the Russians that the Russians could not and did not provide on their own, with their own resources, without any collusion? What kind of political campaign expertise, communications technology knowledge or advertising know-how did the Russians have that the Trump campaign did not? Are the Russians really more skilled and clever at political campaigning then home-grown professional political consultants? What do they know that we don’t know?
There remain, though, significant unanswered questions about whether Trump or his campaign bargained with the Russians to obtain their assistance in the election for whatever it’s worth in exchange for agreements to relieve Russia of sanctions or to approve construction of a Trump Hotel in Moscow. These remain significant and perhaps decisive unanswered questions.
Did the Russian meddling affect the outcome of the election? There’s been much debate over the issue, with the mainstream media, led by the New York Times, and with the great weight of political opinion coming down heavily on the side that the meddling was effective or even decisive in electing Donald Trump. But a careful look at the facts renders that conclusion sheer speculation and seems to be consistent with the bias of whoever is making the conclusion.
The Russians paid “Several millions,” (no actual figure has ever been provided) for their meddling efforts according to the Special Counsel. But “several million” pales by comparison to the 2.4 billion dollars legally spent on the last presidential election (according to the Washington Post), much of it by anonymous American donors, special interests and political action committees, all of it by legitimate homegrown actors — and mostly free of reporting requirements, including huge expenditures in the last two weeks of the election by the Trump campaign from anonymous sources. Whether in the big picture the interference made a difference we will probably never know. There is no way for political scientists or statisticians to measure the impact and they haven’t attempted to do so thus far. If they conduct statistical surveys by interviewing a sample of typical voters what questions do they ask? How would any voter, responding to an interviewer be able to identify if he or she was influenced by any Russian sponsored posting? Where is the evidence that the presumed interference made any difference? So far, there have been no voter surveys, there is no empirical data or statistical evidence to support the claim that Russian interference affected the outcome. It is just unsupported (and mostly biased) supposition, just guesswork. Surely the effect was modest, if not insignificant. The comparatively trivial amount spent by the Russian meddlers (“several million” vs. $2.4 billion) raises a serious question about whether they had any material impact. None of the interference reached into or influenced the mainstream media, not the televised debates, not the nominating conventions, or the campaign rallies, the major news sources — the country’s newspapers, TV networks and other traditional news outlets. Political campaigns are very public affairs; campaigns have to communicate their messages widely, openly and publicly. It is very difficult to conduct a stealth political campaign and have any significant effect on elections. It is speculated that Russian posts in social media interfered with the election, but one problem with that theory is that these posts were diverse and did not always specifically support the Trump candidacy and a relatively few even mentioned Trump or Clinton. Then there is the unsolved question of how many social media followers, who are mostly young people, are actually voters or if they did vote were they influenced?
Curiously the media sources who deny that the meddling had any effect on the election come from polar opposite ends of the political spectrum. For example, Rachel Stoltzenfoos wrote in the very conservative publication, The Federalist, that “There Is No Evidence Russia Persuaded Anyone to Vote Differently.” On the other side of the political divide, Aaron Mate’ agreed. In an article in the December 28, 2018, issue of the very left magazine, The Nation, he cited studies that showed that pundits are wrong about Russian social media involvement in the US politics. The headline provided this summary of these studies:
Far from being a sophisticated propaganda campaign, it was small, amateurish and mostly unrelated to the 2016 election.
Conspicuously missing from the Mueller indictments was any charge that the Russians had hacked into the email accounts of John Podesta or the Democratic National Committee. But in July 2018 the Special Counsel indicted 12 Russian Intelligence officers with doing just that. Putting aside for the moment whether these hacked emails had anything to do with influencing the election — considering that nothing particularly damaging or sinister was revealed in them and much of what was revealed was already known or evident.
It is still an open question whether any official Russian government agents did the hacking as opposed to independent or maverick hackers or quasi-government agents. The US intelligence community is not sharing with us how they know that government officers did it and their conclusions are not backed by an high degree of certainty. There are many in the intelligence community who have doubts. So that remains an unsolved mystery. How can our very best cyber security experts conclusively identify the Russians — or more particularly, specific Russian government agents — as the culprits when they have not yet been able to identify the exact source of the Wanna Cry internet ransomware attack of 2017? Cybercriminals acquired the NSA’s EternalBlue computer program from a shadowy entity known as Shadow Brokers to spread malware that has paralyzed hospitals, airports, rail and shipping operators, ATMs and factories that produce critical vaccines. But neither the NSA, the CIA or FBI have been able to identify who has been doing this. Some foreign entity did it, we just don’t have any way of knowing. And, for the same reason how do we know the Russian government itself did the meddling? How important it is it anyway to identify the source of political cyber interference? Why so much incentive to pin it on the Russian government? And, finally, assuming the Russians did it, so what? What’s the big deal about that? More on that below.
Nevertheless, the July 2018 indictments allege acts in great detail (reading more like a trial brief than the typical initial generic criminal indictment). Many commentators say that the degree of specificity of the charges prove that they are true. That argument fails because there is no limit to the extent of detail that could be written up and derived from the vivid imagination of a prosecutor.
Moreover, charges with so much specificity would be very difficult to prove in an American criminal court due to our restrictive Rules of Evidence, difficulties in obtaining and authenticating documents and constitutional safeguards, such as self-incrimination. How could corroborating witnesses in Russia be produced in an American court? The accused can’t be extradited and even if they were, they could never be cross-examined or required to testify because of the 5th Amendment. Who would be the state’s witnesses? Documents and records could not be subpoenaed from Russia. And, finally, how could these charges be proved “Beyond A Reasonable Doubt” as our laws require? In any event, these charges will never be tested in a US court because the defendants, the alleged perpetrators, will never be tried (under American law a criminal defendant cannot be tried In absentia). Since the Special Counsel’s indictments can never be presented, tested or proved in American court they stand — despite their detail and specificity — as mere allegations and very safe, no-risk indictments, at that. All of this raises the question: Was this just a PR effort, just for show?
Moreover, as already noted, there is considerable doubt as to whether the hacked emails revealed anything all that damaging or that wasn’t already out there from other sources. Apparently the wrongdoing was showing favoritism to Hillary Clinton over Bernie Sanders. Who didn’t already know that?
Significantly, no one is claiming the hacked emails were not authentic. Since they revealed accurate information of arguable wrongdoing by the DNC and it was their own carelessness that allowed them to be hacked in the first place, the Democrats have no reason to complain so vigorously that their wrongdoing (if it really was wrong-doing) was revealed. I’m not sympathetic to complaints that their dirty laundry exposed.
Nations have been interfering in the elections and attempting to influence politics and policies of adversary nations for decades, or more. In some ways probably throughout history. They all do it, we do it too, big time. According to Nina Agrawal in her article in the December 21, 2016 issue of the LA Times:
The U.S. has a long history of attempting to influence presidential elections in other countries – it’s done so as many as 81 times between 1946 and 2000, according to a database amassed by political scientist Dov Levin of Carnegie Mellon University.
Similarly, Peter Beinart, Professor of journalism at the City University of New York says the U.S. “Needs to Face Up to Its Long History of Election Meddling” in his report in the July 22, 2018, issue of The Atlantic. An analysis of Russian and American interference in foreign elections in Wikipedia presents a picture of American interference outstripping Russia by quite a bit. A 2016 study by Dov Levin found that, among 938 global elections examined, the United States and Russia combinef had involved themselves in about one out of nine (117), with the majority of those (68%) being through covert, rather than overt, actions. According to the study, the U.S. intervened in 81 foreign elections between 1946 and 2000, while the Soviet Union or Russia intervened in 36.
These numbers you do not include military coups and regime change efforts following the election of candidates the U.S. didn’t like, notably those in Iran, Guatemala and Chile. Nor does it include general assistance with the electoral process, such as election monitoring.
Or as Amy Goodman commented in an interview on Democracy Now with Juan Gonzalez on April 04, 2017
It’s a pretty remarkable fact that—first of all, it is a joke. Half the world is cracking up in laughter. The United States doesn’t just interfere in elections. It overthrows governments it doesn’t like, institutes military dictatorships. Simply in the case of Russia alone—it’s the least of it—the U.S. government, under Clinton, intervened quite blatantly and openly, then tried to conceal it, to get their man Yeltsin in, in all sorts of ways. So, this, as I say, it’s considered—it’s turning the United States, again, into a laughingstock in the world.
And in an interview on Democracy Now on April 18, 2019, Noam Chomsky commented that, “By focusing on Russia, democrats handed trump a ‘huge gift’ and possibly the 2020 election.” He went on to say that “the focus on Russiagate” was a distraction from important policy issues and that it was “pretty obvious at the beginning that you’re not going to find anything very serious about Russian interference in elections.” The interference he believes, “if it existed, was very slight, much less, say, than interference by, say, Israel. Israel, the prime minister, Netanyahu, goes to Congress and talks to a joint session of Congress, without even informing the White House, to attack Obama’s policies.” He concludes that “… in fact, there’s no interference in elections that begins to compare with campaign funding. Remember that campaign funding alone gives you a very high prediction of electoral outcome.” So the whole Russiagate thing is “a joke” as he sees it.
Ralph Nader has commented about the Russian interference in our elections that “We are the teachers.”
So why are our politicians and pundits all so indignant and outraged about Russian interference? For the Democrats, obviously it is an excuse for losing the election. There is understandable motivation for mainstream politicians of both parties, administration apparatchiks, intelligence officials and military brass to exaggerate the threat, to claim that this threatens the foundations of our democracy. It is an important tool for them to distract voters from other important issues such as fundamental policy issues, and for them to maintain their political power and job security. They have an incentive, a built-in bias, to exaggerate dangers and to manufacture foreign threats in order to instill public fear of a foreign danger Politicians and national leadership have a need to ramp up the fear of foreign influence or threats of harm from abroad so that they can then cast themselves in the roll of protectors from dire dangers of foreign enemy intrusions. If you want to stay in power it always helps to have an enemy. And, of course, the media thrives on the drama of conflict and foreign intrigue, whether it’s war or politics. It makes good headlines boosts TV viewership.
It is, of course, natural for Americans to feel violated and offended by foreigners attempting to intervene in the sanctity of our cherished and sacred electoral process. As I said in a previous edition of this paper back in early 2018 ( quoting myself):
Much understandable outrage is coming from avid Trump opponents and Democratic loyalists, looking for, hoping for, a knockout punch against Trump. They harbor wishful thinking that Trump will be caught red-handed colluding with the Russians and thus be impeached or easily defeated in the next election. As wonderful as that would be, until we have clear proof, objective evidence — say, from the Special Counsel — of real interference or of actual collusion by Trump or his campaign with the Russians or actual proof that their meddling has substantially or materially harmed our democracy, we will have to count the interference that we know of so far as merely mischief causing hurt feelings, indignation — but just emotional harm to our national pride. Let’s get over it — understanding that this kind of thing goes on and has been carried on for a long time by all nations — and get on with some real election reform that will protect us from undemocratic and unwanted interference.
Trump & company should be attacked on the issues, on the merits — or lack of merit on healthcare, taxation, immigration, trade, wealth inequality, homelessness, environmental regulations, real foreign threats such as nuclear proliferation, and other vital issues that have nothing to do with the Russians. Russian meddling is comparatively trivial and a distraction. Concentrating on it diverts attention from the really important, the central substitutive issues.
The Mueller team has been lauded for obtaining several criminal convictions and issuing many indictments. But so far all the American subjects of those indictments, who were lawyers or consultants for Trump’s business and political interests, were indicted for lying to the FBI, to prosecutors or to Congress. Those convicted of lying we’re not lying about any criminal election campaign contacts. None of these proceedings have charged or revealed any substantive criminal activity relating to elections. The only other indictments have been unenforceable charges on untouchable government agents in Russia, as noted above. So this is obviously still a work in progress.
My prediction, by the way, made in an early 2018 version of this article, (quoting myself, again) was that “Mueller’s report, when it comes out, will not identify any ‘smoking gun’ or contain any bombshells, nor any conclusive proof of collusion or obstruction of justice or anything that we haven’t already seen the outlines of in existing indictments and public court proceedings.” And whatever wrongdoing that it reveals will, in all likelihood, be debatable or deniable, and will be attacked as relying on circumstantial evidence, uncertain legal propositions and speculative conclusions. All of the Mueller probe will continue to be vilified as a Witch Hunt and if incriminating, of course, will be denied, rejected and dismissed by Trump and his lawyers and by the reliably loyal Republicans as a whole. But, there will be no smoking gun, no knockout punch. There will be instead a totally partisan standoff. I hope I am wrong, but from my lawyer’s perspective it just doesn’t seem realistic to expect that more will come of it than that. That is not to say that there will not be conclusive proof of campaign violations, such as paying hush money to Stormy Daniels and the like, but the Russian collusion issue is likely to be elusive.
Many pundits and commentators say that the Russians not only sought to influence the election in favor of Donald Trump and against Hillary Clinton, but they also sought to foster distrust, discord and dissension, a loss of public confidence in our in our political process. Did they want to do both? Anyway, why would the Russians want create discord? What material gain would they have obtained from their mischief in our political system? How would foreign mischief in our political system make us materially weaker — militarily or economically or otherwise or make them stronger? Seems like a futile, wasted effort. Were these election tricks just to embarrass us?
But if provoking dissension and undermining confidence in our democracy was their motive, they didn’t need to do much because our system is already stymied and broken by self inflicted political discord and distrust. It’s something we’ve seen a lot of and have gotten used to. Why would we worry about Russians sewing distrust in our system when the President himself during campaign said “the system is rigged” and that his opponent was a criminal and should be jailed. After he was elected he said that millions of illegal votes were cast that deprived him of a national majority. This was the President speaking; not the Russians. Our political system itself, before the Russians ever intervened, has been devolving into partisan deadlock and undemocratic disfunction. If this was a dire threat to our democracy we should take a step back and ask: What democracy? It has been a long time since we have seen any fair measure of bipartisanship or spirit of mutual respect or deference to the loyal opposition in Congress or even in state legislatures. Voting on contentious issues in Congress is almost always on a totally partisan line. Partisan political conflict, deadlock and distrust has become the norm and is endemic in American politics. The will of the people is largely and consistently ignored by our elected representatives. The system is fundamentally flawed; it is undemocratic. The Russians have nothing to do with that — with American self-inflicted political paralysis. It is longstanding and is now the new normal. The public paranoia about the threat to our elections and American democracy, expounded incessantly in the media and by and politicians, is itself generating distrust in our system. It is a self- inflicted wound. In spite of all such dire warnings, our democracy is not threatened by Russian interference. Threats to our democracy are largely homegrown. As imperfect as our democracy is, it will survive. It is fixable. And it will easily survive troublemakers from abroad if we focus on fixing those imperfections.
America, because of the high constitutional protections of freedom of speech, especially as imposed by Supreme Court interpretations of the First Amendment (Buckley v. Valeo, money equals speech and Citizens United vs FEC, regulation of political advertising by non-profit corporations ruled unconstitutional) render us structurally very vulnerable to nefarious influences in our elections whether domestic or foreign. It is a price we pay for these freedoms as currently interpreted by the Supreme Court. (Ironically, what is being perpetrated here by foreign actors could not be done in Russia or other undemocratic regimes around the world.)
In spite of all the hysteria about Russian interference, it seems no one has any idea how to stop it. Much worry is being expressed but no positive solutions are moving through Congress. It is strange why Congress has not proposed any legislation that would require disclosure of the ultimate and true identity of sources of political advertising in all media, including social media, and to prohibit any political advertising from foreign sources. There are clear and sample legislative solutions that would completely cure the problem, yet inexplicably none seem to be going anywhere in Congress. The European Union has adopted legislation to curb such interference, but Congress has not. If this is such a pernicious and sinister problem why isn’t Congress doing anything to fix it?
Until that is done we may just have to try to learn to recognize sources and immunize ourselves from such influences for now because there is no easy way under current law of stopping foreign intrusion.
In the meantime, It is time to turn our attention to curing the gross inadequacy and iniquity of our undemocratic electoral system, to adopt rigorous laws and regulations– and amend the Constitution if we have to — to:
- severely limit campaign spending and contributions, leveling the playing field for all candidates
- overrule the anti-democratic doctrine that money equals speech and the Citizen’s United case,
- create a true “market place of ideas” by promoting, facilitating and even requiring open-ended, thoroughgoing in-depth discussion, debate and analysis of principles and government plans, policies and programs (as opposed to ephemeral personality and so-called character issues and identity politics, couched in vague, highest sounding sentiments that everyone can agree with) — requirements that would govern all political campaigns for federal offices. Laws must be devised and enforced to provide for a fair presentation of all viable political, candidates, propositions and options and all sides of important public issues,
- Require frequent nationally televise real debates, not the scripted press conference charade debates in which candidates get away with evasive, unresponsive and incomplete, generic answers; but instead allowing extensive follow-up and cross-examination type questioning. A minimum number of debates should be mandatory and the timing and format should be set by legislation and regulation, not by unofficial organizations.
- Viable third party candidates should also be included in the debates.
- Require reporting and transparency — including full disclosure of the real source — and including the names and identities of individuals placing political messages on any media, and the amount paid for all political advertising, whether on TV, on Facebook or wherever else — reporting of all political contributions including those surreptitiously or anonymously placed or attempted to be placed by political action committees, the Russians or anyone else. And, as proposed above, prohibiting any political advertising or spending coming from foreign sources.
- Open up ballot access opportunities for a wider spectrum of candidates and voter choices,
- Establish laws and procedures to prevent political gerrymandering and voter suppression in federal elections
- End the Electoral College system and elect the President by popular vote.
Because of the grotesque sums of money, much of it “dark money,” legally gushing into political campaigns from wealthy and powerful individuals, corporations and political action committees, who have a self interest in the outcome of elections, their outsized influence is sadly reflected in many ways: Who qualifies for or can afford or raise enough money to run for office when it takes $1.6 million on average to run for the House and six million dollars to run for the Senate. Total spending on the recent (fall 2018) congressional campaigns came to a billion dollars. The only candidates who can qualify for that and even get on the ballot are ones who already command a large degree of wealth and political standing or who can raise huge campaign funds, perhaps by selling their souls to the highest bidders. That obviously becomes reflected in who gets to run and who gets elected and what policies are pursued and adopted or not adopted by those who are elected. That is not a democratic system; it is a plutocracy. It explains why the will of the majority of the American people is consistently disregarded by Congress and other elected officials in matters such as health care, taxation, business regulation, environmental regulation, the minimum wage, labor policies, gun control and issue after issue. Huge sums spent by large corporate businesses and industries in lobbying take a further toll on democracy. Lax election laws allow the perversion of democracy and also make our elections vulnerable — fertile ground to foreign and domestic nefarious influence. The flood of unregulated money and uncontrolled “free speech” in our elections is the real threat to democracy and has nothing to do with the Russians except to the extent that our system affords them an opening to surreptitiously participate.
We must pursue remedies to cure the gross distortion of democratic processes that continually elect people to office who do the will of their wealthy contributors and ignore the will of the people. Those are the influencers we should really be worried about. If we took the steps suggested above — and many others — we would completely eliminate any risk of undemocratic influence in our elections, foreign or domestic. And we could quit worrying about the comparatively miniscule efforts of 13 Russian political hacks, or 12 Russian military intelligence officers or any other political hacks, here or abroad for that matter.