Russian Interference in America's Democracy: Yesterday, Today, and Tomorrow

Robert Mueller testifying before Congress on Russian Interference in the 2016 election

 

YESTERDAY

The Mueller Investigation came about despite efforts by Trump to stop or impede it. The Mueller Report was released in redacted form on April 18, 2019. However, the results of the investigation were muted by a "summary" of the results presented by Attorney General William Barr, who, during a televised press conference claimed that the investigation revealed no collusion and no obstruction of justice. This was misleading with regard to collusion, and false with regard to obstruction.

The American Constitution Society (ACS) made a line-by-line comparison of Barr's summary and Mueller's findings. They concluded:

"A comparison of the report and Barr’s statements shows that Barr downplayed Mueller’s findings about Russian contacts with Trump campaign associates as well as the damning evidence of the president’s obstruction of justice that Mueller assembled."

In his report to Congress, then-special counsel Robert Mueller detailed how members of the Trump Campaign lied under questioning. Also, campaign insiders like Roger Stone, used encrypted communications to hide their actions. Further, Mueller described Trump as being guilty of the factual elements of obstruction of justice, but left it up to Congress what to do with them. The Democratic-led House Committee on the Judiciary under Jerry Nadler punted.

Trump took full advantage of Barr's cover and proclaimed himself "exonerated," and the story lost steam in the media. Interestingly, Trump was himself directly guilty of obstruction by refusing to multiple requests spanning over a year to appear in person for questioning by the Mueller team, agreeing only to answer written questions. Mueller judged Trump's written answers "inadequate." They were included in an appendix to the report. Anyone objectively interested in Trump's perfidy regarding the investigation owes it to themself to read this appendix.

TODAY

 

In mid-August of 2020, the Republican-led Senate Select Committee on Intelligence (SSCI) released its own years-long report on Russian interference in the 2016 election. The 966-word report in five volumes makes it abundantly clear that Russia's interference in the 2016 election was real, was aggressive, and was effective -- this was no "hoax."

The SSCI report pointed to Trump campaign coordination with Russian interference activities, including the GRU hack of the DNC servers. The SSCI report states that Roger Stone served as the go-between for the Trump campaign, including Trump himself, and WikiLeaks. It has a long section on Paul Manafort, one-time Trump campaign chairman, now serving a 6+ year prison sentence. The SSCI report states that Manafort's presence on the campaign posed “a grave counterintelligence threat,” and questions whether Manafort was actually involved in the Russian interference campaign itself. The report makes it clear that there was direct coordination between WikiLeaks and the Trump Campaign. In that the hacked material WikiLeaks fed to the Trump Campaign were provided by the Russian Military Intelligence Service, the GRU, WikiLeaks essentially served as what's known in intelligence parlance, as a GRU cutout.

It's important to understand the fundamental difference between the SSCI's investigation and that of the Special Counsel, Robert Mueller. The Special Counsel conducted a criminal investigation. This is why Mueller was careful to draw a distinction between "collusion," and "conspiracy." The Special Council evaluated potential criminal conduct by the Trump Campaign according to conspiracy law (18 U.S.C § 371), because “collusion” per se is not found in U.S. Code nor in federal criminal law. The burden of proof for conspiracy used by the Special Council was that the Trump Campaign and the Russian Government had an agreement, tacit or express, on the Russian’s election interference, and more, that the parties were taking actions informed by or responsive to the other’s actions or interests.

The Mueller investigation identified innumerable links between the Trump Campaign and Russians possibly tied to the Russian Government (e.g., “cutouts”). People interviewed by the Special Council sometimes provided information that was false or incomplete, while others deleted relevant communications, used encrypted communications, or auto-delete features. Ultimately, the Special Counsel concluded that there was insufficient evidence in the legal sense to establish that members of the Trump Campaign conspired with the Russian Government in its election interference activities.

The Senate Select Committee was not strictly bound by legal statutes. It conducted a counterintelligence investigation. Counterintelligence investigations address intelligence questions pertaining to national security threats, not merely statutorily prohibited crimes. That is why the SSCI investigation revealed a breathtaking depth and breadth of cooperation between Trump, his campaign, and the Russians that has never before been seen in the annals of presidential politics. Unfortunately, many areas of the report that could provide grater granularity are redacted, because of the classified nature of the material.

Despite countless redactions, reviewers at LAWFARE (Todd Carney, Samantha Fry, Quinta Jurecic, Jacob Schulz, Tia Sewell, Margaret Taylor, Benjamin Wittes) were able to prise from the 966 pages the following key findings with regard to "collusion:"

1. The Trump campaign and Donald Trump himself were certainly aware in real time of Russian efforts to intervene in the 2016 presidential election. The campaign had a heads-up that Russia had stolen Democratic emails. And Russian operatives sought and received a meeting with senior Trump campaign officials promising “dirt” on Trump’s opponent. As the campaign wore on, and the Russian efforts were increasingly made public, Trump personally and publicly encouraged them.
2. The Trump campaign was run for a time by a man with an ongoing business relationship with a Russian intelligence operative, to whom he gave proprietary internal polling data. 
3. The Trump campaign did not discourage Russian activity on its behalf. In fact, it sought repeatedly to coordinate its messaging around WikiLeaks releases of information. The campaign, and Trump personally, sought to contact WikiLeaks to receive information in advance about releases and may well have succeeded.
4. The campaign sought to obtain disparaging information about Hillary Clinton from actors who either were Russian operatives or it believed were Russian operatives. It did so through a number of means—some of these efforts were direct. Some were indirect. 
5. The Russian government and affiliated actors clearly regarded the Trump campaign as a prime target for influence and recruitment. Russia targeted a diverse array of people associated with Trump for contact and engagement through an astonishing variety of avenues. Some of these attempts were rebuffed. Many of them were successful. The result was a sustained degree of engagement between the campaign, and later the transition, and Russian officials and cutouts.
6. Trump’s personal and business history in Russia provided a significant opportunity for kompromat. Such material was very likely collected. There is less evidence that it was ever deployed, though Trump’s mere awareness of his vulnerability gives rise to substantial counterintelligence concerns.
7. Trump’s active pursuit of business deals in Russia while running for president and denying any such deals created significant counterintelligence risk.
8. Trump’s campaign, and later transition, were filled with a remarkable number of people who had secret interactions with Russian actors, about which they lied either in real time or in retrospect.
9. All of this activity, particularly cumulatively, amounts to a grave set of counterintelligence concerns, in which any number of Trump campaign figures—including the candidate himself—exposed themselves to potential coercive pressure from an adversary foreign actor. 
10. Trump to this day will not criticize Russian President Vladimir Putin or acknowledge unambiguously Russian intervention in the 2016 election.   
    

The main body of the SSCI report concludes,

"(U) It is our conclusion, based on the facts detailed in the Committee's Report, that the Russian intelligence services' assault on the integrity of the 2016 U.S. electoral process and Trump and his associates' participation in and enabling of this Russian activity, represents one of the single most grave counterintelligence threats to American national security in the modem era."

TOMORROW

Artificial Intelligence (AI) has already altered what we buy, what we view, and what we do. AI is integral to the social media platforms to which we've become addicted -- AI establishes the formula for creating that addiction. AI helps print media decide what to include in its hard copy versus digital edition, and what its price points should be, as well as how to leverage its content on social media. As we enter the post-Information Age, AI will be used in conjunction with"Big Data" to disseminate disinformation to a targeted audience of confounded users.

Facebook, Inc. includes in its arsenal: Facebook Messenger, Facebook Watch, and  Facebook Portal, as well as Instagram, WhatsApp, Oculus VR, Giphy, Mapillary, and 9.9% of Jio Platforms. Facebook, Messenger, WahtsApp, and Instagram are ranked 1 through 4 of the world's most downloaded apps.

Now Facebook CEO Mark Zuckerberg is moving to make Facebook, Inc's portfolio of social media apps interoperable. According to Zuckerberg's "A Privacy-Focused Vision for Social Networking," The Facebook, Inc. portofolio will, "give people a choice so they can reach their friends across these networks from whichever app they prefer." This means one could post their grandkid's picture in Facebook and text it to their mistress using an encrypted message in WhatsApp. And despite Zuckerberg's waxing poetic about privacy, secure data storage, and other user benefits, it also means easier collection, codification, and classification of big data -- the better to sell you with.

China's 19-year-old Go player Ke Jie prepares to make a move during the second match against Google's artificial intelligence programme AlphaGo in Wuzhen, eastern China's Zhejiang province, on May 25, 2017. (STR/AFP/Getty Images)

Zuckerberg wrote his manifesto in March 2019, and while he's been bringing it to fruition, researchers in artificial intelligence have been advancing the state of the art such that a machine, AlphaGo, has mastered the ancient and long considered impossibly complex game of Go. Now the researchers at DeepMind have mastered one of the most challenging real-time strategy games of all time, StarCraft II.

Google acquired DeepMind in 2014 for a reported $500 million. In 2016, DeepMind announced that Google had found a use for its AI technology in its enormous data centers. The only thing left for DeepMind to master is the means to defeat hackers determined to hold the computer systems and data of financial institutions, insurance companies, and even hospitals hostage using ransomware, or sovereign adversaries using competing AI programs determined to bring down nation states -- like ours.

In China, AlphaGo was a "Sputnik moment" which helped convince the Chinese government to prioritize and dramatically increase funding for artificial intelligence. The United States has been the leader in AI, but Donald Trump's trade war with China, and xenophobic rhetoric has made the U.S. a less attractive destination for talented AI researchers, while at the same time helping China retain its AI talent.

According to Onalytica, among the "top influencers" in AI by brand, Google leads with a 25% share, followed by IBM, Microsoft, Amazon, and wait for it -- Facebook. Zuckerberg is building his business by learning everything possible about the users of Facebook, Inc., and packaging their data for the benefit of advertisers, of course, but how about for the benefit of the U.S. Census, political candidates, political parties, states, or even nation states? It's all out there for the highest bidder, and Zuckerberg has shown he has deep pockets.

AI has the potential to make America's problem of defending against interference in its democratic institutions that much more difficult. It also has the promise for aiding in that defense. The question is, what will win out, patriotism or capitalism?

Having Read the Mueller Report

I had three questions regarding the Mueller investigation into Russian interference in the United States 2016 Election:

1. What was the extent of Russian interference in the election, and did it change the outcome?
2. Did the Trump Campaign “collude” with Russia in their interference in the election? 
3. Was Donald Trump guilty of obstruction of justice with regard to the investigation?

Having now read the Mueller Report, these are my answers.

Russian Interference

The Mueller investigation uncovered “sweeping and systematic” operations along multiple  lines:

• a sophisticated social media campaign that involved every major social media entity and reached tens of millions of U.S. persons and attracted hundreds of thousands of followers

• the staging of political rallies inside the United States organized by Russian operatives posing as American grassroots activists who worked through the aforementioned social media accounts

• the theft through “hacking” of private documents, emails, and other data from the DNC and the Hillary Clinton Campaign and individuals associated with it

• the theft through “hacking” of data and records from individuals and entities involved in the administration of elections (state boards of election, secretaries of state, county governments)

• the targeting of private technology firms responsible for manufacturing and administering election-related software and hardware, such as voter registration software and electronic polling stations

The Mueller investigation did not attempt to gauge the impact of Russian interference on the election, nor did they pursue a deeper investigation into the intrusion of servers administered by targeted states, understanding that this further investigation was being undertaken by the FBI, Homeland Security, and state election offices.

So, the answers to our first question are:

• Russian interference in the 2016 election was a massive, well-planned and executed, information operation that reached tens of millions of U.S. voters, perhaps as many as 126 million.

• We don’t know from the Mueller Report whether the Russian operation changed the outcome of the election. Trump won the Presidency with razor thin margins in Michigan (.03%), Wisconsin (1%), Pennsylvania (1.2%), and Florida (1.3%). So, it’s possible.

• According to the Washington Post, 107,000 votes in three states — PA, MI, WI — swung the election for Trump. So, it’s possible.

• Mueller didn’t further investigate the intrusion of election hardware or software. So it’s possible.

Collusion

Rudy Giuliani was correct, if misleading, when he said “collusion is not a crime.” The Mueller Report would ultimately clear up the confusion, but was preempted by Attorney General William Barr’s “summary” of the report. The 4-page summary was released days before the report itself, and was followed by Barr’s curious press conference the morning of the day the redacted report was to be released. In his statement, Barr repeated multiple times that there was no “collusion,” and insisted that Trump had “fully cooperated with the special counsel’s investigation.”

The Mueller Report pointed out that the Special Council evaluated potential criminal conduct by the Trump Campaign according to conspiracy law (18 U.S.C § 371), because “collusion” per se is not found in U.S. Code nor in federal criminal law (p.181). The burden of proof for conspiracy used by the Special Council was that the Trump Campaign and the Russian Government had an agreement, tacit or express, on the Russian’s election interference, and more, that the parties were taking actions informed by or responsive to the other’s actions or interests.

The Mueller investigation identified innumerable links between the Trump Campaign and Russians possibly tied to the Russian Government (e.g., “cutouts”). People interviewed by the Special Council sometimes provided information that was false or incomplete, while others deleted relevant communications, used encrypted communications, or auto-delete features (p.10).

Ultimately, the Special Counsel concluded that there was insufficient evidence to establish that members of the Trump Campaign conspired with the Russian Government in its election interference activities.

As for Mr. Trump’s cooperation with the investigation, that matter is addressed in Volume II of the report addressing obstruction of justice, and is covered here on Page 3.

There have been and will continue to be fierce disagreement with Robert Mueller’s finding in the matter of collusion. The Report confirms what the media was reporting about the many meetings between Trump Campaign officials and Russians, and adds others of which we were unaware. Furthermore, it confirms what Michael Cohen testified to regarding Trump Tower negotiations — they were going on until at least 2016 — giving Trump a substantial reason to cooperate with Russian interests (p.67). Nonetheless, it’s important to understand that Mueller was not charged with making a value judgment about the moral or ethical behavior of Donald Trump, or even to characterize it. He was charged with making a decision to prosecute or decline to prosecute. He did that.

What those unsatisfied with the results of Mueller’s investigation should consider is that Congress is not constrained by the jurisdictions or legal code under which Mueller operated, and can decide that even the appearance of conspiring with a U.S adversary, along with the appearance of a conflict of interest, is sufficient to hold the President accountable in some other manner than criminal prosecution.


Obstruction

Volume II of the Mueller Report deals with the question of obstruction of justice and covers the final 182 pages of the report. The Special Council had jurisdiction to consider: (1) whether the President had obstructed justice in connection with the Russian-interference related investigations; and (2) whether the President acted to obstruct the Mueller investigation itself. In neither case did the Special Counsel exonerate the President — far from it.

A quick review of the Table of Contents for Volume II provides the reader with a sense of the depth and breadth of the President’s obstructive actions, from refusing to acknowledge Russian interference in the 2016 election, to attempting to fire the Special Counsel.

A somewhat amusing anecdote in the Report about the President’s obstructive actions described Trump’s directing Attorney General Jeff Sessions to inform Mueller that he only had jurisdiction to investigate Russian meddling for “future elections.” Sessions, who at the time had recused himself from dealing with the investigation, refused. (p.97)

In his press conference on April 18, Attorney General William Barr stated that President Trump, “fully cooperated with the Special Counsel’s investigation.” The Report shows this to be untrue in many respects, but most especially in the President’s refusal to be interviewed, despite the Office of the Special Council trying for “more than a year” to obtain the President’s cooperation, and conveying to the President’s counsel that, “an interview with the President is vital to our investigation” (Appendix C).

The President finally agreed to respond to certain written questions, not including obstruction. In doing so, Trump answered 30 times with some form of memory failure. In other cases, the President’s answers were “incomplete or imprecise” (Appendix C). The Special Council viewed the President’s answers as inadequate, and considered issuing a subpoena for his testimony. In the end however, Mueller felt he had sufficient evidence for the Report, and did not want to delay submission pending the result of long litigation (Appendix C).

Given the evidence collected by the Mueller investigation, it may be surprising that the Special Council did not charge Trump with obstruction of justice, but he didn’t. Instead the Report states that, “while this report does not conclude the President committed a crime, it also does not exonerate him”(p.2).

The reason the Special Council chose not to charge the President revolves around an opinion issued by the Office of Legal Counsel (OLC), a part of the Department of Justice, and the concept of “fairness.” The OLC opinion states that, "the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions" in violation of "the constitutional separation of powers.”

Mueller chose to accept the OLC opinion and so not prosecute the President. Because he would not prosecute, the President if found guilty of criminal conduct with regard to obstruction would not be afforded the opportunity to defend himself in the ordinary way — through a speedy and public trial. See the Introduction to Volume II, pages 1 & 2 for a more complete summary of the Special Council’s reasoning.

By early Tuesday evening, May 7, more than 720 former federal prosecutors who worked in Democratic and Republican administrations had signed a letter asserting that if Trump were not the president, he would have been charged with obstructing justice based on Special Counsel Robert Mueller's findings.

Finally, it is crucial to understand that the Special Council has provided Congress the means to hold the President accountable for his actions and makes it clear under the section on Statutory and Constitutional Defenses that, “Congress has the authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice” (p. 8)

The Special Counsel goes on to say, “The conclusion that Congress may apply the obstruction laws to the President's corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law” (p. 8).