Everyone, well, almost everyone, seems to agree that the Russians meddled in our presidential election in 2016. And, again, almost everyone agrees that, if they did, they were wrong to do so. On the surface, the issue seems too obvious to justify much debate. The basic argument is that a sovereign nation should be able to conduct a democratic election without attempts from foreign governments to influence the result.
But at a forum on the topic at the recent conference of the Association of American Law Schools (held in San Diego last week), legal scholars did find much to discuss and debate on the issue. I’ll note here some of the points that were raised in the forum and add a few of my own. (The forum was organized by two of my colleagues—Professors Jarrod Wong and Frank Gevurtz—from the McGeorge School of Law; they also served as moderators of the event.)
For openers, the point was made that the United States is hardly free of guilt on the subject of meddling in another country’s domestic politics. In fact, the U.S. has often engaged in attempts to sway public opinion in foreign countries. A most blatant and extreme example was the C.I.A.-supported (if not directed) overthrow of the government of Chile’s democratically elected president in 1973.
More recently, the U.S. was actively involved in attempts to overthrow the socialist government in Nicaragua in the mid-1980s. The revelation of those attempts led to the Iran-Contra scandal that threatened the presidency of Ronald Reagan. And, of course, through the imposition of sanctions, the U.S. has sought to destabilize, if not overturn, established governments in Cuba, Iran, and North Korea, among others, while it used military force to overthrow the established government in Iraq in 2003.
With respect to democratic elections, the U.S. clearly meddled in Serbia in 2000 when it actively supported the opponent of Slobodan Milosevic with money and training. As a result, Milosevic was defeated.
About a third of the instances of U.S. meddling are overt. The rest are covert, meaning they are denied when claims are made that they have occurred. The difference between the two forms of meddling may be significant if either is to be justified. Overt meddling may be tolerated, if not welcomed, in a truly democratic election, if that meddling is understood to be an exertion of influence. Why, for example, shouldn’t voters in Serbia know that the election of one candidate might result in a loss of U.S. aid, while the election of another would not?
Covert meddling, on the other hand, denies voters the ability to understand the source of the attempted influence or the reason for it. Hence, voters are not provided the necessary information to make an informed vote (with respect to the foreign influence). Presumably, the real objection to Russian meddling in 2016 is that it was covert. Thus, U.S. voters were unable to understand what Russian interests were being asserted in the attempt to influence the result.
None of the foregoing discussion justifies illegal actions by either foreign governments or domestic actors. Watergate was illegal because, first and foremost, it began with a burglary, which, loosely defined, is an unwelcome (non-consensual) entry of a structure by someone for illegal purposes. What made Watergate impeachable were the cover-up efforts orchestrated by the president, but the original crime occurred when the burglars entered the offices of the Democratic National Committee to steal internal files. The same attempts by a foreign government would be equally illegal, as would attempts to conduct cyber-theft, which may have been, in part, what the Russians were doing in the 2016 election.
But what if the “meddling” is not covert and is not, in and of itself, illegal? Is there any justifiable reason to object to efforts by foreign governments to influence elections? Would it be objectionable, for example, for the U.S. president to state openly that the United States opposes the election of a socialist government in Canada or Mexico? Why? Wouldn’t the voters in those countries potentially benefit from that knowledge? Wouldn’t their votes be more informed as to the consequences of the election of one candidate or another?
Isn’t more knowledge by the voters, rather than less, the goal of all elections in a true democracy? How many of us would not have been aided in our votes in 2016 if we had known the views of the other nations of the world when we voted? Why shouldn’t knowing what other countries think about our candidates and how they would respond to the election of one candidate over another affect the way we regard each candidate? Isn’t that kind of information one reason polls are taken?
The opposite perspective would be that knowing how other countries regard our candidates would somehow be harmful to our democracy. But isn’t an informed electorate a good thing? Or must the information only come from 60-second ads and sanitized stump speeches that gloss over the issues and deny any real understanding of a candidate’s positions?
The real problem with the presumed Russian meddling in the 2016 election turns on the covert and possibly illegal aspects of it. It was certainly covert; no one from Russia has acknowledged it, and even our president sounds unconvinced that it occurred (a troubling point, about which more in a moment). It also may well have been illegal, at least to the extent that it involved cyber-theft, if not disseminating “fake news” through trolls and sympathetic media outlets. And if a democracy can only be enhanced by an informed electorate, it must surely be threatened by one that has been duped or lied to or by a process that lacks integrity and that favors cheaters or those aided by cheating.
All of which is why President Trump’s refusal to pay attention to the meddling charge against Russia is so troubling. If the president doesn’t regard that kind of foreign interference as a threat to the democracy, is he upholding his constitutional oath? Even more troubling is the idea of collusion, which the president adamantly denies. For a presidential candidate to allow his or her campaign to align with covert foreign interference that included illegal activity would probably constitute an impeachable act. For the elected president to then try to obstruct the prosecution of those involved in the covert illegality would be grounds for conviction and removal from office.
Bottom line: Overt efforts (be they domestic or foreign) to influence an election should be expected and welcomed in a true democracy. Covert efforts, especially those that involve illegal conduct (again, be they domestic or foreign) should be rejected and, when discovered, prosecuted. As with all things political, the rules are not always pretty, but they are still the rules everyone is expected to honor.