When Special Counsel Robert Mueller indicted 13 Russians for meddling in the US elections the question raised was: What did they do that was unlawful? 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 legally by homegrown political consultants and operatives 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.” 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 better than the Russians. The crime committed by the Russians was that they were the source and they paid for it.
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” in connection with an election from a foreign national. 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 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 could the Trump campaign have done 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?
There remain, though, significant unanswered questions about whether Trump or his campaign bargained with the Russians to obtain their assistance in the election in exchange for agreements to relieved Russia of sanctions or to approve construction of a Trump Hotel in Moscow. These remain significant unanswered questions.
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 never know. There is no way for political scientists to measure the impact. If they conduct statistical surveys by interviewing a sample of typical voters what questions do they ask? How would any respondent be able to identify if he or she was influenced by any Russion sponsored posting? But surely the effect was modest, if not insignificant. The comparatively trivial amount spent by the Russian medlers (“several million” vs. $2.4 billion) raises a serious question about whether they made 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 — newspapers, TV networks and other traditional news outlets. Political campaigns are very public affairs; campaigns have to communicate their messages openly, publically. It is very difficult to conduct a stealth political campaign and have any significant effect on elections.
Conspicuously missing from those indictments by the Special Counsel 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 wdeal ith 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 revealwed was already known or evidenct. It is still an open question whether any official Russian government agents did the hacking as opposed to independent or maverick hackers. The US intelligence community is not sharing with us how they know that government officers did it and their conclusions are not backed by 100% 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, the Russian government — as the culprits when they have not yet been able to identify the source of the Wanna Cry internet ransomware attack of 2017?
Nevertheless, the July 2018 indictments allege acts in great detail (reading more like a trial brief than the typical initial generic criminal indictment). 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. So the accused can’t be extradited and even if they were, theycould never be cross-examined or required to testify. Documents and records could not be subpoenaed from Russia. How could corroborating witnesses in Russia be produced in an American court? 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 or proved in American court it was a no-risk indictment. All of this raises the question: Was this just a PR effort, just for show?a bit
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 possible or arguable wrongdoing by the DNC and it was their own carelessplaces a ness that allowed them to be hacked in the first place, the Democrats have no reason to complain that their wrongdoing (if it really was wrong-doing) was revealed.
Nation’s have been interfering in the elections and attempting to influence politics and policies of adversary nations for decades, or more. In some ways probably throughoyut 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.
That number doesn’t 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.
Ralph Nader has commented about the Russian interference in our elections that “We are the teachers.” Or as Noam Chomsky has said, the whole thing is a joke. 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 motiovation for mainstream politicians of both parties, adminstration 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 maintain their political power and job security. They have an incentive, a built-in bias, to exaggerate dangers and to manufacture public fear of a foreign intervention. Politicians and national leadership have a need to ramp up the fear of foreign influence or threats of harm 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.
It is, of course, natural for Americans to feel violated and offended by foreigners attempting to intervene in the sanctity of our cherished electoral process. 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 hurt feelings — emotional harm to our national pride.
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 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 real 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 contact. None of these procedings have charged or revealed any substative criminal activity. The only other indictments have been unenforceable charges on untouchable government agents in Russia. So this is obviously still a work in progress.
My prediction, by the way, is 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 endictments and public court proceedings. And whatever wrongdoing that it reveals will, in all likelihood, be deniable, and will be attacked as relying on circumstantial evidence and debatable conclusions. All of the Mueller probe will continue to be vilified as a Witch Hunt and, of course, will be denied, rejected and dismissed by Trump and his lawyers and by the relieably loyal Republicans as a whole. 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, dischord and dissension, a loss of public confidence in our in our political process. What is the evidence that this is happening? Anyway, why would the Russians want to do this? 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 them stronger? Seems like a futile, wasted effort.
But if provokiing dissension and undermining condfidence in our democracy was their motive, they didn’t need to do much because our system is already stymied and broken by political dischord and distrust. 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 — 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. Threats to our democracy are largely homegrown. As imperfect as our democracy is, it will survive. And it will easily survive mischief 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 being proposed. It is strange why Congress has not proposed any legislation that would require disclosure of the ultimate and exact sources of political advertising in all media, including social media. The European Union has adopted legislation to curb such interference, but Congress has not. 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) — 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 major issues,
- Require frequent 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.
- Viable third party candidates should also be included in the debates.
- Require reporting and transparency (full disclosure of the real source and 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 by political action committees, the Russians or anyone else,
- 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 have sold 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.