So What if Trump Had Won?

2020

 So, given that 2020 was a disastrous year, 2021 was a bad year, and this year is shaping up to be worse, would be have been better off if Donald Trump had won the election? (And by that I don't mean successfully overturned it, which would cause another set of problems, but had won fair and square).

Anyone arguing that has to begin with the obvious -- 2020.  That year saw a pandemic, shutdowns, economic upheaval, mass riots, and terrible forest fires with many people fearing to evacuate out of fear of Antifa.  Donald Trump and his supporters can give any number of reasons (of varying plausibility) why none of this is his fault.  And, indeed, one thing 2020 should make clear is that under our federal system the President's power is quite limited.  But the events of 2020 should also show anyone with any sense that Donald Trump is no miracle worker, and that his presence in the White House is no guarantee against disaster.

Still, given all the problems we have faced since, how would Trump have fared?

COVID

2020

My guess is he would have done better here in at least one regard.  He would have convinced his supporters to get vaccinated.  That would significantly lower our hospitalization and death rate.  Would it have convinced his opponents to refuse the Trump Vaccine?  If the vaccine came out after the election, rather than as an October Surprise, and if scientists vouched for it, my guess is his opponents would have gotten vaccinated, while denying it was the Trump Vaccine and pointing out the vaccine's shortcomings.  

I suspect Trump would not have gotten the vaccine out as quickly as Biden (he never appears to have had much of a plan in place), but the vaccine was getting out reasonably well anyhow, so I don't think that would be all that important. He would not have been able to stop the vaccine from starting to wear off after a few months.  Nor would he have prevented mutations of COVID from forming.  The only real way to stop mutations would have been to vaccinate the whole world.  Biden failed to do that and deserves our criticism.  But Mr. America First would certainly not have done any better.

My boss, while acknowledging that Trump would not have intimidated the virus into submission, says that he would have responded to failure of the vaccine by developing a better testing regimen. I will happily concede that our testing regimen sucks and the Biden could have done better.  But Trump was markedly hostile to testing from the start for fear it would show the full extent of the pandemic.  Given his overall track record, his most probable response to the Trump Vaccine not being as good as expected would be to try to happy talk it away and, once that failed, to lash out and blame anyone but himself for the problems.  He would no doubt promote treatment -- whether effective or not.  But overall Trump's chronic inability to acknowledge failure would have hampered him -- as always.

THE ECONOMY

2020

Inflation is a world-wide trend.  It would have been a world-wide trend under a second Trump term.  It is possible that under a Trump presidency we would have had a smaller stimulus, which would have led to less inflation.  But that would have come at the cost of a slower recovery.  Pick your poison. 

As for supply chain issues, they, too, are largely the result of recovery outrunning capacity, so much the same applies. I am absolutely certain Trump would not have been able to do anything about the computer chip shortage that has been a major bottle neck. Why?  Because computer chips are highly capital intensive to build and can take several years to ramp up.  That has nothing to do with who is in the White House.

THE BORDER

Trump would have left Remain in Mexico in place and greatly reduced border crossings.  Make of that what you will

CRIME

I would expect Trump to be rhetorically at least much tougher on crime than Biden and unveil federal initiatives to crack down.  How effective that would have been is anybody's guess, but it would have at least appeared to be doing something.

AFGHANISTAN

I think the general consensus on the Afghan withdrawal is that Biden was dealt a bad hand and played it badly.  What would Trump have done?  Well, one possibility I have heard is that he planned to withdraw right away without further ado.  This would have led to the collapse of the Afghan state as soon as the Taliban went on offensive in the spring, but by then we would be gone, so it would be somebody else's problem.  Alternately, other times Trump wanted to withdraw military forces, the military outfoxed him and kept them in place.  In Afghanistan that would have meant breaching our agreement and left the unpalatable choice between escalation and humiliating withdrawal.  I have no idea what Trump would have done.  But I am confident of one thing.  Biden deserves our condemnation for failing to save many of our Afghan allies.  Trump, to judge from his record, would not even have made the attempt.

THE UKRIANE CRISIS

I do not think Russia would be gearing up to invade Ukraine if Trump were in office.  Putin would have seen a friend in the White House and not have wanted to jeopardize that friendship.  Also, Trump would be in the process of wrecking NATO by picking senseless fights with allies.  Why unify them with an obvious threat?

OTHER

2024?

So, if Trump has won the White House, I would predict a higher vaccination rate leading to less COVID hospitalization and death, possibly a slower recovery that would not overstrain our capacity, a quiet border, the appearance of doing something about crime, and avoiding the current crisis.  Does that mean I regret my vote for Biden and wish Trump had won?

And the answer has to be no. Counterfactuals always seem better than reality because they assume that if we avoided our current problems, other problems would not take their place.  Trump was contemplating everything from withdrawing from NATO and South Korea to starting a war with Iran.  Certainly there is every reason to believe he intended to subvert the federal government more and more to make it an instrument of his personal power, to reward friends and punish enemies.  The grownups in the room were able to reign Trump in for his first term.  It is far from clear that they could have done so for a second.

And if All that is Not Terrifying Enough . . .

 

And just in case the news of imminent war is not terrifying enough, you can read Dmitri Alperovitch's thread* on the impending economic war, ruinous to all sides.  And in case that is not terrifying enough, he now has a new thread no where that can lead.  He warns first, that Western leaders are ready to slap Russian with severe economic sanctions, but not ready for retaliation (discussed in his previous thread). If that does not persuade us to back down, he warns, the Russians will mostly likely escalate to massive cyber attacks.  We naturally will retaliate.  And ever-escalating cyber warfare can even lead to an actual war.

Terrifying!

PS:  On the other hand, this may be overly alarmist. It seems much more likely that once it becomes clear that sanctions involve some pain for us, they will gradually collapse well short of all-out cyber war, let alone a shooting war.

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*Dmitri Alperovitch is the founder of Crowdstrike, the cyber security firm that first found the Russians had hacked the DNC server.

Hope, Fear, and Paranoia

It is very egocentric to look at the Ukrainian crisis solely from its effects on me when vast humanitarian and geopolitical issues are at stake. But I am not qualified to comment on those issues and have nothing really to contribute, so let me go with one powerless person's perspective.

Hope and fear are strangely linked.  For days I have been following the Ukrainian crisis, wavering between hope that war can be averted and fear that it has begun. But by now it is obvious based on many factors -- extension of military exercises that were supposed to end today, reports that the final order had been given, Russian forces moving into attack position, Russian propaganda treating war as inevitable, and Putin's arrogant dismissal of all attempts at diplomacy -- that war is at hand.

And for a time seeing war as inevitable made it seem just a little less terrifying.  Fatalism is a common way to overcome fear -- it means saying that what will happen will happen, so there is no point fearing it.  Fatalism also necessarily  means giving up hope.  Apparently I have not become completely fatalistic about the war, because I still keep fearfully peeking at News Today to see if it has happened yet.

Mostly I have found a coping mechanism.  It is based on the fact that Ukraine is nine hours ahead of where I am, and perhaps being overly influenced by the phrase "Attack at dawn."  So I tend to assume that any ground attack will take place in the early hours of the morning.  (Admittedly bombing and shelling can take place at night).  I get up at 7:00 a.m. and check News Today to see if war has begun.  Since Ukraine is nine hours ahead of us, that is 4:00 p.m. Ukrainian time and the maximum peril for the day has probably passed.  When it is 3:00 p.m. our time, it is midnight in Ukraine and another day has passed without war.  About 9:00 p.m. through 11:00 p.m. my time is 6:00 a.m. through 8:00 a.m. Ukraine time -- the time of maximum peril.  It is also 11:00 p.m. through 1:00 a.m. Eastern time.  Most media outlets have closed for the night, so they probably will not report a war till the next morning.  Besides, if I keep doomscrolling I will never sleep and what good is that?

Another point.  It was a very important insight at the beginning of my career reading an account by a psychiatrist who explained that the difference between paranoia in the colloquial sense and true clinical paranoia is one of degree, not of kind.  Anyone being bombarded with more data than they can process becomes suspicious.  People with hearing loss tend toward low-level suspicion because when they see people talking but can't hear the conversation, they wonder if people are talking about them, or if the see people laughing and can't understand the conversation, they wonder if they are being laughed at.  Much the same happens to people with normal hearing around people speaking an unfamiliar language.  Paranoia, he said, is simply a defect in people's data processing.

It explains a lot.  Particularly, it explains the rise in paranoia with the internet.  The internet means the people are being constantly bombarded with more data then they can process and become suspicious as a result.  Certainly one thing I have learned is that if you value your peace of mind, do not follow a twitter thread too far.  Otherwise you will be bombarded, not only with anger and invective, but with a great cacophony of conflicting opinions, all linked to seemingly credible sources that I am completely unqualified to evaluate.

And, indeed, the more I follow developments from Ukraine, the more anxious and paranoid I become.  The best remedy seems to be to keep my mind occupied with something -- anything -- else.  

Some advice from the novel version The Godfather on coping mechanisms for Mafia wives.  Invariably the women are kept in the dark about what is going on and only learn that there is trouble when their men are killed. Sonny Corleone has gone to rescue his sister from her abusive husband and is killed along the way.  Mama Corleone (we never learn her first name) is preparing for their arrival when her adoptive son gets the call that Sonny is dead.  He does not tell her and

[T]he old woman had not noticed anything amiss. Not that she could not have if she wanted to, but in her life with the Don she had learned it was far wiser not to perceive.  That if it was necessary to know something painful it would be told soon enough.  And if it was a pin that could be spared her, she could do without.

After long hours of doom scrolling, I am starting to think that is wise advice.

Economic WWIII: The Political Fallout

 

I will admit it. It is not just the economic effects of economic WWIII that I fear.  It is the political fallout.

Already Republicans are portraying 7% inflation and gas prices over $3 per gallon as an unprecedented disaster and utter ruin.  Now imagine how they will respond to all the possible results of economic warfare with Russia, or even just some of them.

Sweeping Republican landslides in 2022, with capture of the electoral machinery.  Republican victory in 2024, either by Trump himself or someone as much like him as possible.  And that not be so bad if nothing more were at stake that ordinary partisan politics -- defeat, yes, but with the proviso that no defeat is permanent, and that you can always live to fight another day.  But today's Republican Party has clearly given up on democratic politics and fancies itself as entitled to a monopoly on political power.  Give the Republicans a landslide now and expect them to entrench a one-party system like Mexico in the heyday of the PRI.

Presumably the end game of our sanctions is to bring down Putin.  I am skeptical that that will happen, or, if it does, that we will like his successor any better.  But the real fear that haunts me is that, in seeking to topple Putin, we topple our own democracy instead.

And now you know why it is hard for me to think about anything but the Ukrainian crisis.

Economic WWIII

So, let me focus on Ukraine.  The question by now is not whether there will be a war or even when.  The war has already started, with border clashes, ceasefire violations in the Donbass and the like.  I suppose there might be room to argue about the scale of the war, but I think the Russian buildup on Ukraine's borders answers that one.  The only remaining question is how long the Russians mean to stay, and in how much territory.  I don't think we can have any idea about that.

As I have said before, the good news is that the Russian invasion will not lead to WWIII.  We have ruled out military intervention.  But it will lead to economic WWIII. We may be in a position to hurt Russia, but Russia is in a position to hurt us as well. We all know that gas prices will skyrocket.  Europe receives as much as 40% of its oil from Russia.  There has never been an oil shock on that scale. Furthermore, increase oil prices have a ripple effect into all areas of the economy.  So much for inflation calming down any time soon.

Nor is it just oil.  Read this thread. It is terrifying.  

Our computer chip industry, already stretched past its limit, imports 90% of its Neon from Ukraine and 35% of its palladium from Russia.  Hypothetically, this could halt chip production altogether.  Chip manufacturers say they will get by.  I lack the knowledge to say whether this means they have alternatives, or whether it is just industry happy talk.  The article does have one reassuring comment.  Neon prices increased by 600% during the last Ukraine crisis.  The chip industry carried on.

Russia also has 25% of the world's titanium.  Military planes (for obvious reasons) do not use Russian titanium, but that just steers more commercial aircraft toward it.

Russia produces 2/3 of the world's ammonium nitrate fertilizer and stopped exporting on February 2.  This can only drive rising food prices even higher.

There will almost certainly be cyber attacks as well.  Remember that ransomware attack on Colonial Pipeline?  Not to mention support for Iran in unpredictable ways.  The author concludes:

We could potentially find workarounds against most of these economic responses from Russia but, at a minimum, we should expect further spikes in inflation and pressures on supply chains across numerous critical industries

END

Let us also recall that that sanctions have generally been notable ineffective at toppling hostile governments or even getting them to change their ways.

Still, I suppose there is one bright spot if you want to call it that.  It avoids what I call the rolled-up newspaper problem (or maybe the "if you don't drop dead we'll kill you" problem) that Daniel Drezner writes extensively about.  Namely, how to you remove sanctions?  After all, if you impose sanctions to pressure a hostile country into changing its behavior, you have to be able to remove the sanctions if the behavior changes -- even if the country remains generally hostile otherwise.  

In a country with that much power to retaliate, I do not imagine that will be a problem.

The Inspector General's Report: In Sum

So, in short, the Inspector General's report found:

1. The FBI followed existing procedures in opening its investigation into the Trump campaign, although those procedures should probably be tightened to require DOJ approval;
2. The FBI followed existing procedures and appears to have acted appropriately in doing FBI file and open source investigation on campaign members, asking other government agencies for information, and opening an investigation on four members who seemed genuinely suspicious;
3. The FBI followed existing procedures in having confidential informants from outside of the Trump campaign talk Carter Page and George Papadopoulos, but those policies are incredible slack and should be tightened;
4. The FBI very properly did not insert any informants into the Trump campaign itself;
5. The FBI was not wrong to talk to Christopher Steele and investigate his leads, despite his working for Trump's political rivals (although it found serious problems in the nature of their relationship); however
6. The FBI seriously mismanaged the FISA application on Carter Page, using uncorroborated information from a dubious source and failing to include important exculpatory information. 

Reading between the lines two other things become apparent.  First the investigation came up dry.  It failed to find any evidence of a link between the Trump campaign and Russia.  This has led many Trump supporters to argue that the investigation should never have been launched.  But this ignores two things.  First, investigations do sometimes pursue false leads.  It is only in hindsight that we know which investigations will and will not turn up anything of importance..

Second, and relatedly, there wasn't much of an investigation.  Operation Crossfire Hurricane basically consisted of an open source search, a search of FBI files, inquiry to other agencies, several interviews by confidential informants, looking into the Steele Dossier, and a FISA warrant on Carter Page.  Really, that is rather thin.

Of course, the reason that Crossfire Hurricane was so skimpy was that it was operating under a serious handicap.  It had to conceal its existence.  That problem is endemic to all counter intelligence operations, but it was particularly acute in the case of Crossfire Hurricane because the target of the investigation was so high profile.  Actions like subpoenaing records might be doable in a lower profile case but would be detected what the target was a U.S. presidential campaign.  Crossfire Hurricane was therefore cut off from normal investigative techniques, like subpoenaing records and openly interviewing witnesses.  

Thus the story of the Trump investigation does not end with Crossfire Hurricane, but moves on to the Robert Mueller investigation.  The Robert Mueller investigation was able to use more open investigative techniques, but it, too, had a disadvantage.  The Mueller investigation was a criminal investigation.  That meant that it had to reach its conclusions based on evidence that would be admissible in court, and had to refrain from assumptions that, though reasonable, lacked an adequate evidentiary basis.  Although the Mueller Report did not find anything that could be charged as a criminal conspiracy, it did find disturbing happenings, in particular, that Paul Manafort was regularly sending polling data to a probably Russian spy, and that Michael Flynn was cruising the dark web for Hillary Clinton's deleted e-mails, unconcerned with the possibility that he might be talking to Russian spies.

The Senate Intelligence Committee, unhampered the the constraints of a criminal investigation, looking into these allegations in greater detail and did not find a conspiracy between the Trump campaign and Russian intelligence, but found many decidedly disturbing event.  If this were a spy movie or mystery novel, the investigation would not have shifted from Crossfire Hurricane to Robert Mueller or the Senate Intelligence Committee.  Instead, the FBI, with the same personnel, would have been released from their constraints and completed the investigation.  

For me to complete the novel/movie, I should next read and post about the Senate Intelligence Committee report.  But I don't think I will do that just yet.  Why not?  Because right now Russia is gearing up for war on Ukraine.  We are hearing an endless drumbeat of reports that war could start any day.  In fact, at least some reports set the date as Wednesday, February 16.  And in Ukrainian time, it is already Wednesday, February 16, so the war could start, not just any day, but any hour.  A Russian invasion will not lead to WWIII because the US has ruled out military intervention.  But it will start an economic world war, with disastrous consequences for all parties.  Somehow everything else looks trivial by comparison.  So I do not expect to post on other topics until we see how things shake out.

The Inspector General's Report on the FISA Warrant

 

The bulk of the Inspector General's Report (pp. 121-34) deals with the FISA warrant against Carter Page, and finds numerous flaws in the process.  Even before receiving the Steele Report, agents had wanted to wiretap Page.*  To obtain a warrant, the FBI had to establish probably cause to believe that Page might be the agent of a foreign power.  Their interest was based on Page's past contacts with Russian intelligence agents and his visit to Moscow in July.  If there was any coordination between the Trump campaign and Russian intelligence, that seemed like the  most likely time for it to take place.  However, higher up's believed that the FBI was close, but not quite there (pp. 121-122).  The Steele report elevated the case for a wiretap from about 50/50 to what the FBI considered sufficient (p. 125).** 

The report found serious flaws in the application.  FISA applications should contain all relevant information, pro and con.  The application for Carter Page was based primarily ln the Steele report.  It included many of Steele's allegations about Page, including that he was serving as an intermediary between Manafort and Russia in a "well-developed conspiracy" regarding the hacks, that Russian officials offered him compromising materials on Hillary Clinton that they might be willing to share, that Russian officials discussed lifting sanctions with Page, and that Page was involved in Russia's release of DNC e-mails to Wikileaks (p. 130).  None of these allegations, it should be added, proved to be true, nor was there any corroboration at the time the application was made (p. 132)..  Meanwhile, the application left out significant exculpatory information (p. 127):

• Although the Steele Dossier portrayed Page as a liaison between Manafort and Russia, Page denied every having met or spoken to Paul Manafort.
• Page's denials of any knowledge of ties between Russia and Wikileaks or involvement in the Republican Party platform during a conversation with an informant (pp 146-147).
• Page's denials to the informant of meeting with sanctioned individuals in Moscow (p. 170).
• Papadopoulos' denials to an informant that the Trump campaign had any involvement with Russia or Wikileaks (pp. 166-167).  Such denials must be included, even if the FBI does not believe them (p. 168).
• Notice from the CIA (always referred to as "another government agency."  For some reason the Inspector General is extraordinarily coy about naming it) that Page was working for them in many of his Russia contacts.
• A serious exaggeration of Steele's reliability and importance

The FBI did also have some concerns about Steele being hired to do opposition research for the Democratic Party or the Clinton campaign (pp. 134-142).  At the same time, the FBI routinely uses biased or hostile sources in seeking warrants (friendly or neutral sources rarely have much dirt to offer) and considers this acceptable so long as the bias is include in application (p. 144).  That information was included in the Page warrant, in a footnote that was clearly visible in the main text (pp. 142-143). 

The FBI went on to apply for and receive three renewals of the application.  Although never expressly stated, the reason for the renewals appears to have been that they weren't getting any significant information, which was probably a sign to end the surveillance.  The first renewal application was not significantly different from the original application, except that it mentioned Steele had been fired for leaking information to Mother Jones.  It did not mention new information the FBI had received since the first application casting doubt on Steele's importance, reliability, and sources (pp. 202-204). 

The FBI applied for a second renewal in April, 2017 (p. 210).  By this time, they had spoken to Steele's primary sub-source and learned information from the sub-source that cast serious doubts on much of Steele's reporting (pp. 211-212).  Yet this was not included in the application (pp. 213, 215).  The same defects carried over into the FBI's third and final application (pp. 219-228).  

The Inspector General found that FBI procedures do allow the use of uncorroborated information in FISA applications, as was done with Page.  However, in those case, there has to be a thorough assessment of a source's reliability.  The FBI seriously failed in this requirement for Page (pp. 360-361).  It also found that many of the defects in the process were known to lower-level agents but did not make their way the top, so that higher ranking FBI officials approved the application unaware of its defects (p. 365).  This raises and obvious question -- how many of these problems are unique to this particular application and how many are chronic?  The report even found that one of the lawyers involved in the application tampered with an e-mail to state that Page was "not a source" for the CIA.  

If anyone is interested in the fine details of how the FBI makes FISA applications, I highly recommend the Inspector General's report.  For anyone else, the whole thing is deathly dull.  The report also contains interesting information for an outsider.  There are approximately 1,300 FISA applications submitted per year, and about 25-40 final applications per week (p. 133).

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*A FISA wiretap of George Papadopoulos was also considered but rejected (p. 128).

**For what it is worth, General Counsel James Baker believed there was sufficient information for a FISA warrant even without the Steele report (pp. 134-135).  

The Inspector General's Report: Between Opening and FISA

 

Choosing individuals to investigate, preparing profiles, and seeking input from other government agencies are all appropriate as low-intrusive investigation techniques, but they only go so far.  One possibility was to subpoena relevant records, but the FBI decided against it (p. 355).  The FBI was constrained by a problem endemic to counter intelligence investigations -- how to keep the existence of the investigation secret to avoid tipping off the targets.  Subpoenas of this kind are public records.  Perhaps the FBI could get away with such a subpoena in a lower profile case, but anything this high profile, they were bound to be detected.  

Instead, the FBI opted to have confidential informants talk to the targets to see what they could learn.  These conversations were recorded.  Clearly this is a more intrusive technique that an open source search or seeking information from other government agencies, but it does not require a warrant or even approval of higher-ups, even in sensitive political matters.  Rather, it is treated as a judgment call by the investigation (pp. 307, 355-356).  

What is considered sensitive and does require extensive authorization and supervision, is infiltrating a confidential source into a political organization (p. 316, 403).  In other words, having a confidential informant inside the Trump campaign reporting on its activities. To do so would require (1) approval of the Special Agent in Charge, notice to the Sensitive Operations Review Committee, and departmental approval to record any conversations (p. 403). The members of the investigation were well aware of these restrictions and did not attempt to place any informants inside the campaign (pp. 311).  The FBI has a number of pre-existing informants in the Trump campaign but did not seek to activate any of them, (pp. 336-340, with heavy redactions).  The Inspector General also found no evidence that the FBI send any informants to the Trump campaign prior to opening the investigation (pp. 312-313).

The first outreach to an informant took place on August 11.  The plan was to talk about Russian interference in the election and possibly mention Papadopoulos (p. 314).  Much the the FBI agent's surprise, the informant had been offered a job in the Trump campaign, by Carter Page, no less and also mentioned Manafort and Flynn as people to watch (p. 315).  But the job offer raised problems, since the job offer with the Trump campaign raised all the restrictions and oversight needed to place an informant in a political operation (p. 316).  The source met with Carter Page on August 20, purportedly to discuss possible employment in the Trump campaign.  Page said that he had never met Manafort and that Manafort never responded to his e-mails.  (Keep in mind that this was nearly a month before the investigation received Christopher Steele's report that Page was Manafort's liaison with the Russians).  Page also complained about unfavorable press coverage (this was nearly a month after the Yahoo article accusing him of meeting with sanctioned Russians during his visit).  Page also hinted at an October Surprise but was evasive and seemed open to making use of Russian information if done very discreetly (pp 317-318).  

On September 1, 2016, the same source met, wearing a wire, with an unnamed high level campaign official who was not a target of the investigation, in hopes of learning more about Page and Papdopoulos.  The conversation yielded little to nothing of any significance.  The report expressed concern about the lack of safeguards to protect any sensitive information that might have been revealed (pp. 326-329).

The same source also met with George Papadopoulos on September 15.  In an attempt to recreate the conditions that led to Papadopoulos' indiscrete comments to the ambassador, the FBI arranged to have the meeting take place out of the country (at FBI expense), over drinks, for the nominal purpose of discussing business dealings (pp. 329-330).  Papadopoulos denied any coordination with either the Russians or Wikileaks and said that such things would be illegal (pp. 331-332).  The source and the FBI were suspicious of these responses, which seemed rehearsed (p. 332). Without reading or hearing these statements, it is hard to tell whether they were correct, or if motivated reasoning and confirmation bias were taking over.

The FBI also took advantage of its August 31, 2016 briefing of the Trump campaign to talk to Michael Flynn and get a sense of him (pp. 340-344).

All these conversations, it must be noted, took place before Crossfire Hurricane received the Steele Dossier on September 19.  Prior to receiving the report, the investigation had consisted of doing an open source search, seeking information from other government agencies, and having several taped conversations.  As the report comments, this had yielded some suspicious background on several campaign members, but nothing truly incuplatory (p. 101).  Presumably the investigators were starting to get frustrated and uncertain how to proceed when this apparent gold mine came along. Also predisposing the FBI to believe the Steele report was that it confirmed what they had already learned in their investigation of the hacks -- that Russian intelligence was responsible for the DNC hacks, that the Russian government was supporting the Trump campaign, and that the Russian government was seeking to sow division in the United States and the trans-Atlantic alliance (p. 101).

The FBI then began investigating the materials in the dossier.  They developed diagrams, charts, timelines and spreadsheets of the events identified, seeking sources and what could be verified (pp. 101-102).

Agents for Crossfire Hurricane inquired about Steele to his handler and received an endorsement that rather exaggerated his importance and reliability (p. 102).  By the time the FBI met with Steele in October, he had already discussed his findings with other government officials (Bruce Ohr of the Justice Department) and discussed the matter with the press.  All outlets except Yahoo News had deemed the matter too unverified to publish, but well before the meeting Yahoo News had run a story alleging that Carter Page met with a sanctioned individual in Russia (pp. 104-105). While the FBI was uncertain whether Steele was directly responsible for the Yahoo story, it had little doubt that his research was the ultimate source (pp. 106-107). At their October meeting, the FBI agreed to employ Steele to search for additional intelligence on named individuals, physical evidence of collaboration, and information on his sub-sources (pp. 109-110).  Steele was disappointed at this request, wanting to focus on Trump, but he did identify some of his sources.  He also declined to identify who he was working for (pp. 110-111).  There was also evidence from the start that his information might not be reliable. The Russian who Steele identified as Page's possible handler was one that Page had given the CIA information about (p. 111).  

The FBI also told Steele to report to the FBI only (p. 112).  Steele, needless to say, did not comply.  The FBI fired him as a source after he leaked the investigation to Mother Jones on October 31, 2016 (pp. 172-175).  Most of the FBI's investigation into either Steele's reliability and his reporting took place after he was fired, and even after the election.  Further investigation into Steele revealed him not to be as reliable or as important as he had claimed (pp. 182-186).  It was not until early 2017 that the FBI was able to talk to Steele's primary sub-source (p. 186).  The sub-source's comments decidedly tended to weaken and undermine the dossier.  For instance, the sub-source could not the urinating on the bed incident at the Ritz Carlton in 2013 and denied any knowledge of Carter Page being offered a bribe when he visited Russia in July, 2016 (p.. 187).  The sub-source also made clear that the information being passed on consisted of rumors by people who did not have first-hand information, and that Steele's reports made it all sound more definite that it really was (p. 188) and that much of what was reported as fact was actually analysis or supposition (p. 190).  

he Inspector General found that the use of informants met with existing FBI policy, which made the matter purely discretionary, so long as the FBI did not place informants within the campaign itself.  The report found (appropriately, I think) that there needed to be more controls over the use of informants, and that the matter should not be left solely to the discretion of the investigating officer.  In particular, the report recommended policies to protect against the incidental collection of politically sensitive information, and for assessments to determine whether the potential impact on constitutionally protected activity outweighs the potential investigative benefit (p. 400).  (Someone within the Trump campaign appears to have approached the FBI and provided them with information, and that the Inspector General has concerns about that.  However, the section is so heavily redacted that it is not possible to tell what happened, p. 402).  As stated before, the report did not find the use of any informants inside the Trump campaign.  Presumably this means that the strict rules in such cases were effective (pp. 403-404).  The report also expressed misgivings about using briefing to gain information on Michael Flynn, mostly on the grounds that it could undermine the trust necessary in such briefings, (pp. 407-409).  While not prepared to call for an absolute ban, the report recommended requiring the approval of senior leaders (p. 409).

With respect to Steele, the Inspector General found that the FBI was not required to ignore his work simply because it was opposition research , but was required to critically examine the information taking that into account (p. 383).  Initially the FBI was unable to verify Steele's information, and after talking to his sub-source, found it to be questionable (pp. 383-384).  The report goes on to say that these problems should have been included in the FISA application (pp. 384-385).

Next up: The FISA warrant.

Inspector General's Report -- Opening the Investigation

So, what is actually in the Inspector General's Report?  First of all, it is tediously long (over 400 pages) and redundant.  It also really needs a glossary to allow the reader to keep track of the alphabet soup of acronyms.  There is also a large cast of characters, whose exact role in the FBI and the investigation can sometimes be confusing.  The purpose of the report is to determine whether the FBI followed accepted policies and procedures, and also to make recommendations for improvements.  

Finally, and frustratingly, the report is not in strict chronological order, or even in order of escalation. It begins, reasonably enough, with the opening of the investigation and its decision to investigate four members of the Trump campaign.  It then goes on to discuss the FBI's meeting Christopher Steele, its interviews with some of his sources, and its application for a FISA warrant against Carter Page.  The report has many serious criticisms of the application for a FISA warrant and three renewals.  Only after nearly 200 pages discussing warrant and serious defects in the process does the report discuss the FBI sending confidential informants to talk to members of the campaign, even though the confidential informants happened first and were a lower step of escalation.  (I do not understand the reason for this sequence).

 The decision to begin with the opening of the investigation is certainly reasonable, but , interestingly, it is not the first chronological event discussed in the report.  Trump defenders frequently accuse the FBI with beginning the investigation (known as "Operation Crossfire Hurricane") with the Steele Dossier, which is at best a collection of third and fourth hand rumors and at worst an outright fraud.  Trump critics say the investigation began when the Australian ambassador to the United Kingdom reported that George Papadopoulos had said he had spoken to Maltese professor and presumed Russian asset Joseph Mifsud, who said that the Russians had "dirt" on Hillary Clinton, in to form of "thousands of e-mails."  Trump defenders have also argued that Mifsud was an FBI informant who made that comment to Papadopoulos, trusting that he would pass it on and give the FBI an excuse to investigate.

The report begins (p. 49) with some background.  Papadopoulos made his careless remarks to the Australian ambassador in May, 2016.  The ambassador does not appear to have considered them significant at the time. The Russian hacks of the DNC server became known in June, 2016. Wikileaks started publishing DNC e-mails on July 22, 2016.  On July 28, 2016, the ambassador began to think these remarks were more important that he had realized and reported them to the FBI.  The FBI opened its investigation on July 31, 2016 (p. 50).  The Inspector General interviews of witnesses and reviews of FBI documents confirmed this sequence of events and did not turn up evidence that anything else started the investigation (pp. 56, 346).  A thorough search of FBI files also failed to turn up any evidence that Mifsud was ever an FBI informant (pp. 312-313).  

No contact between Crossfire Hurricane and Steele had taken place at this time.  However, that was not for any lack of effort on Steele's part.  Steele appears to have reached out the the FBI in early July and provided an agent with one of his reports on July 5, 2016 (p. 95).  He appears to have been well aware that he was hired by associates of the Democratic Party and the Clinton campaign (p. 96).  Steele provided another report on July 19, which his handler passed up the chain of command to the New York Field Office (NYFO) (p. 98).  The NYFO appears to have informed Deputy Director Andrew McCabe, who passed the tip on to Crossfire Hurricane in August 25, 2016 (p. 99).  Crossfire Hurricane first received Steele's reports on September 19, 2016 (p. 100) and began investigating (p. 101). Crossfire Hurricane personnel made inquiries about Steele on September 23 and held a telephone conference about setting up a meeting on September 27 (p. 103).  The first in-person meeting took place in early October (p. 18).  In short, Steele appears to have been reaching out to the FBI before the investigation began, but his research only became part of the investigation about a month after it opened, and Crossfire Hurricane agents did not meet with Steele until over two months after beginning the investigation.  Significantly, then Steele contacted the FBI after the DNC hack became public, but before Wikileaks published DNC e-mails. The first contacts between also took place after the July 23, 2016 Yahoo News publication sourced to a Steele leak (more on that later).

So if Operation Crossfire Hurricane did not begin with an investigation of the Steele Dossier, how did it begin?  Upon receiving a tip from the Australian ambassador, the FBI decided to open an investigation, and not to notify the Trump campaign, lest it change its presumed contact with Russian intelligence (p. 55).  The standard to launch such an investigation is low -- no more than an "articulable factual basis" to believe that there is a threat to national security (pp. 56-57). A Sensitive Investigative Matter (as this obviously was) requires special consideration about the seriousness of the danger and special care to use the least intrusive method.  In addition, the FBI Office of General Counsel must review the investigation, the Section Chief must approve it, and the National Security Division must be notified (pp. 21-22).  

The FBI's first action was to undertake an open source and FBI database search on members of the Trump campaign to see which were mostly likely to be points of contact with Russian intelligence (p. 59).  They found four likely suspects to make targets of investigation.  Carter Page (a fairly low level foreign policy advisor) had extensive business ties to Russia, had traveled to Russia in July, and was the subject of an ongoing counterintelligence investigation by the FBI in New York.  Paul Manafort, the campaign manager, had been an advisor to and lobbyist for the pro-Russian party in Ukraine.  Papadopoulos was flagged for the communications that started the investigation.  Michael Flynn was flagged for his ties to Russian entities and for appearing on Russia Today (p.60). The individual investigations were apparently opened on August 10, 2016 (p. 78)  The next step was to draw up profiles based in materials in FBI records, and to ask other government agencies for materials to contribute to the profiles (p. 78).   

Page was considered the most likely point of contact because of his pre-existing contacts with Russian intelligence and because he was already under investigation for them (pp. 61-62).  However, the FBI received information from "another U.S. government agency" that Page had worked for it from 2008 to 2013 (p. 79).  In other words, Page worked for the CIA, and his contacts with Russian intelligence agents may have been in order to spy on them.  For some reason, the report is extremely cagey about naming the agency involved.  This fact should have been taken into account in further investigations, but was not.  

The Inspector General concluded that the decision to open an investigation, to conduct open source and internal files investigation, and choose these four particular targets met the low standard of opening an investigation -- an "articulable factual basis." (pp. 347-354, 410), that the investigation was opened for an "authorized purpose" (p. 347), and that the use of open sources and FBI internal materials was appropriate as as  "less intrusive technique" (p. 355).  It found no evidence of improper political motivation.  Although texts exchanged between Peter Strzok and Lisa Page showed improper political bias.  However, it found that Page had no role in he decision to open the investigation and that, while Strzok did have such a role, others were also involved in the decision, and that he did not act unilaterally (pp. 348-349).  They found no evidence of improper political motivation among any of the other participants in the decision to open the investigation (pp. 349-350).

I will add that in my own opinion, the standard for an open source investigation probably does not need to be very high. Open source investigation, after all, is just investigative journalism, and anyone can do it.  And internal FBI records, though not publicly accessible, are freely accessible to the FBI. At the same time, there has to be some sort of threshold.  Investigative journalism is a labor intensive process, and FBI time and effort is a limited resource.  Besides, so much information is public now that a thorough-going investigation, even one limited to open sources, can be quite intrusive.

The report found that all necessary requirement for such a sensitive investigation were met (p. 353). At the same time, the report expressed concern that the FBI had unilateral authority to make such decisions in matters as sensitive as a Presidential campaign.  It proposed that high level Justice Department approval should be required (pp.353-354, 411).  I am not convinced.  It would not reassure me to know that the Jeff Sessions or William Barr Justice Department approved an investigation into a Democratic candidate for President, and I doubt that Republicans would be reassured that an investigation was approved by the Eric Holder or Merrick Garland Justice Department.  At the same time, it would over burden federal courts to require a warrant for matters of low intrusiveness.  Maybe there should be a quasi-judicial section of the Justice Department with authority to grant internal authorization for politically sensitive investigations, perhaps with a "devil's advocate" lawyer to make arguments against the authorization.

Next up:  Between opening and FISA.

The Crossfire Hurricane Inspector General's Report Comes Across Like a Spy Movie

Wow!  It has been over a year since I promised a report on the Inspector General's Report on the origins of the Trump-Russia investigation.  Granted, so much has happened since then it seems like something impossibly long ago that no one cares about anymore.  But I still want to post about the report for a most implausible reason.

Dense and difficult as the reading was, I always had the feeling that I had stepped into a spy movie or a mystery novel.  I kept wondering how your could make this into a spy movie or mystery novel.

It had all the elements -- false leads, red herrings, a surprise twist in the outcome, even a love story.  

And yes, I know that real life is not a mystery novel or spy movie.  The most suspicious person usually really is guilty.  The harmless looking person in the background usually is harmless and only tangentially involved.  But on the other hand, real life investigators really do pursue false leads and stumble into blind alleys sometimes.  

Operation Crossfire Hurricane, as the investigation was known, is an example of how such things play out in real life.  The FBI suspected a regular channel of communications between the Trump campaign and Russian intelligence, after learning that a presumed Russian agent had approached George Papadopoulus. The FBI identified four suspects who might be conduits -- Papadopoulus, Carter Page, Paul Manafort, and Michael Flynn.  While it investigated all four, the FBI quickly singled out Page as the most likely contact.  It was a reasonable supposition.  Page had had frequent contacts with Russian intelligence operatives, had been interviewed by the FBI for his contacts with Russian intelligence agents in 2013, and was under an unrelated counterintelligence investigation at the time Operation Crossfire Hurricane opened.*  In fact, he was secretly working for the CIA as a sort of double agent trying to gain intelligence on these Russian agents.  (In the murky world of espionage, it is not always clear who is spying on who).  

In a spy movie or mystery novel, this fact would have been dramatically revealed just as the FBI thought it was closing in for the kill and cut off this promising line of investigation.  In fact, the lower level agents appear to have found out and not bothered to pass this information on when applying for a warrant to wiretap Page.  Their numerous failings in applying for the wiretap form the bulk of the report.  The FBI failed to turn up anything damaging on Page, despite the warrant and three renewals.  

In the end, of course, the FBI ended up dropping the investigation and the thread was taken up Special Counsel Robert Mueller and the Senate Intelligence Committee.  These further investigations would make clear that there was no regular channel of communications between the Trump campaign and Russian Intelligence -- except that there was.  The Trump campaign was not receiving reports from the Russians or coordinating strategies with them.**  However campaign manager Paul Manafort was running an apparently rogue operation in which he regularly passed polling data to presumed Russian intelligence operative.  What use the operative made of the polling data is unknown.  

Obviously, if this had been a spy movie/mystery novel the investigation would not have changed hands.  The FBI agents who started the investigation would finish it.  What about discovering that what was going on was much less involved and sinister than it appeared at first sight?  This is a permissible gambit, going back at least to Jorge Luis Borges' 1942 short story Death and the Compass, in which a seeming pattern of murders pointing to some bizarre occult practice turns out to have been a ruse to lure in the detective for the kill.  Umberto Ecco copies the technique in his novel Name of the Rose, in which a series of murders at a monastery appear to follow the signs from the Book of Revelations, but it turns out that the monks were merely reading from a poisoned book and the pattern was superimposed by the viewers.***  And Dan Brown is infamous for the technique.

Of course, in your classic spy or mystery story, an even more classic ploy would be to have the whole Russian hack turn out to be a red herring and the DNC e-mails were really stolen by Seth Rich. Except that is not what happened.  The Russians really did hack the DNC.   So a classic spy/mystery story would have to take some liberties with events to make Seth Rich a credible red herring.  What actually happened (for anyone who has forgotten) is that the DNC realized they had been hacked and called a private security firm to investigate.  The firm traced the hack to Russian Intelligence.  The DNC notified the FBI and publicized the hack. The e-mails first appeared in Wikileaks over a month later.

In a mystery/spy story, no one would have been aware of the hack until the e-mails appeared in Wikileaks.  The FBI would then begin an investigation that initially centered on Seth Rich and became especially intense when he was murdered.  But further investigation would clear him and reveal that the true hacker was Russian Intelligence -- true in the finding, false in the sequence.  After realizing they were dealing with the Russians, the FBI would then receive a tip suggesting that the Russians had approached the Trump campaign with this information (true) and begin the investigation.  

The Steele Dossier would also figure in as another red herring.  I am not sure how the mystery/spy story would handle the Peter Strozk/Lisa Page romance (both were married to someone else; the romance ultimately never went anywhere), but what would a novel be without a love story?

Next up:  What the Inspector General's report actually said.

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*It should go without saying, but it was not normal for a presidential candidate to employ such a person as a foreign advisor.
**Although Roger Stone, close to the campaign but not a member, was receiving information from Wikileaks and passing it on to the campaign.

***Ecco paid tribute to Borges and his short story by naming the villain Jorge of Burgos.

Ukraine Again

 When the crisis in Ukraine started ramping up, I would begin every morning by checking News Today to see if Russia had invaded Ukraine while I was sleeping.  After a while it became increasingly hard to sustain that level of alarm and the project lost some urgency.

Well, I guess it is time to become anxious again. Russia has started large scale war games in neighboring Belarus.  The map makes clear why this is so alarming.  It greatly expands Ukraine's vulnerable border.  

The Russian government says the war games will continue for ten days (until February 20) and that the Russian troops with withdraw from Belarus at the end of that time.  Are such promises worth the paper they are printed on?  (Or the pixels the broadcast?)  Probably worth that much, but not much more.  If Putin decides to invade Ukraine, the wargames will make it trivially easy for him to manufacture a pretext and then say he had intended to withdraw but events forced his hand.  On the other hand, if he ends up deciding that discretion is the better part of valor, he can withdraw as promised without loss of face and even laugh at us for being so alarmist.

And if the Russians do withdraw from Belarus after February 20, the next question will be how much a reduction of tensions that is.

I Know This Isn't Another Impeachment, But . . . .

 

The Select Committee is promising hearings some time this spring, to be shown on prime time TV.  And I think of family lore about my grandfather's second wife during the Watergate hearings.  She dropped out of society and spend all her time watching the hearings and shouting "Get him!  Get him!"  I am starting to understand the feeling.

I am old enough to dimly remember the time.  It had been so long since the last impeachment that news broadcasters had to explain how the process worked. The House was solely responsible for the investigation.  If the House found grounds for impeachment, then they would try it with the Senate serving as the court.

Look, I know this is not a third impeachment inquiry.  But somehow I can't help noticing that the inquiry is being handled entirely by the House.  Is that significant?

I can only see this turning into a third impeachment if members of the House very discreetly sound out Senate Republicans and find the votes to convict.  It seems most unlikely.

During the second impeachment, the obvious question was whether you can impeach an official who is no longer in office.  Obviously removal from office will be a moot point.  The important point is barring him from ever holding office again.  Jamie Raskin, the impeachment manager, made the argument that a rule barring the impeachment of ex-officials creates a January exception.  A President can do absolutely anything during his last month in office with complete impunity, at least with regard to holding future office.

By contrast, Trump's lawyer, Michael Van der Veen, denied any such exception and made four arguments, two of which, I remarked, were not only mutually incompatible, but served to create considerably more than a January exception.  Van der Veen's arguments were:

1. Impeachment is only possible for officials who are still in office.  The House unduly delayed and should have presented the trial to the Senate by January 20.
2. The impeachment violated Senate rules by not having separate counts.
3. Donald Trump was denied due process.  The House acted with undue haste by failing to make an adequate investigation before acting.
4. Trump's speech to the crowd was constitutionally protected free speech and did not meet the legal definition of criminal incitement.

I think we can safely ignore the second defense as something that no normal person could possibly care about.  But the other three are significant.  In fact, defenses (1) and (3) are directly opposed to each other.  On the one hand, the House had to do a full investigation into the facts of what happened.  Van der Veen's co-counsel, David Schoen, even said:

Speaker Pelosi herself on February 2nd, called for a 9/11 style commission to investigate the events of January 6th. Speaker Pelosi says that the commission is needed to determine the causes of the events. She says it herself. If an inquiry of that magnitude is needed to determine the causes of the riot, and it may very well be, then how can these same Democrats have the certainty needed to bring articles of impeachment and blame the riots on President Trump? They don’t.

Can we point out the obvious here?  There is no way to form a 9-11 style commission to thoroughly investigate the events of January 6 and have the results ready for trial before January 20.  To require the House to do both things in order to impeach a President would create window considerably longer than one month in which it was not possible to do both.  In other words, not just a January exception, but a December, November, and quite possibly October exception -- and maybe more than that.

At that same time, what has come out of the select committee so far has shown considerable merit to defenses numbers three and four.  The first impeachment, focused entirely on the January 6 violence, tended to assume that Trump incited it with rather thin proof.  Subsequent events make clear that neither Trump nor any of the rally organizers anticipated or intended a violent riot, although they may have intended the threat of violence to put pressure on Congress. In other words, Trump's speech on January 6 probably really was constitutionally protected speech and not criminal incitement.  

But that does not end the inquiry by a long shot.  The standard Republican line these days is to condemn the January 6 riot as of course a crime, but merely the work of a small number of rowdies and completely unrelated to anything else.  Mainstream Republicans definitely want to gloss over the possibility that there might have been anything illegal in all the other attempts to overturn the election -- say, by pressuring Georgia Secretary of State Brad Raffensperger to change the vote total, or by presenting false slates of electors, or considering having Homeland Security seize voting machines.  Republicans want to focus on the most dramatic and visible, but also most deniable attempt to overturn the election and pretend that the rest did not happen, or if it did that it was "legitimate political discourse."  

That is why Republicans like Ronna McDaniel are so angry at Representatives Cheney and Kinzinger.  Because they are not willing to treat the insurrection as an isolated incident by a violent mob, but as part of a much larger attempt to overturn an election involving many prominent and respectable Republicans.

And that is another reason impeachment would be the most appropriate remedy here, politically impossible though it may be.  

Attempting to overturn an election is a very serious political offense, as serious a political offense as there can be.  Indeed, it strikes at the core of our whole system of elective government -- that the loser of an election must accept the outcome.  But much of it is not necessarily a criminal offense, and for an obvious reason.  What is forbidden has been done. The truly unthinkable is never a crime because no one ever thought to forbid it.  Much of Trump's attempt to overturn the election, such as pressuring state legislatures to send alternate slates of electors, or pressuring Republicans in Congress to accept the alternate slates of electors, does not appear to have broken any laws.  And any action that was not a crime when done cannot be prosecuted US Constitution, Article I, Section 9, clause 3.*  

But it is more than ample proof that the offender is an intolerable threat to our political system and has no business holding office.  Which is to say, the hitherto unthinkable, and therefore not illegal, can be legitimate grounds for impeachment.  Especially when it places our entire political system in jeopardy.

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*Indeed, one can make a fair argument that pressuring a legislative body to take even illegal action is mere inappropriate lobbying and not a crime.  

There Should Be a Law, But is There?

The January 6 investigation committee and investigative journalists are revealing more and more of the full extent of the plot to overturn the election, from forged electoral certificates to calling on the Department of Homeland Security to seize voting machines, to say nothing of spinning theories to allow Congress or the Vice President to ignore the outcome of the election.

The obvious question to all of this is, is it illegal?  You see, when something is illegal, it means that people have done it in the past.  The truly unthinkable is never illegal because no one ever thought to outlaw it.  Thus it probably never occurred to anyone to forbid private citizens from declaring themselves to be electors, or Congress from accepting them as electors, or the Vice President from overriding Congress and throwing out the vote in states where private citizens claimed to be electors, or for people to cajole or plan to do any of these things.  Thus there may very well not be laws against doing any of those things.

There are laws against falsifying election results -- against throwing out legitimate ballots or against voting if one is not registered or voting more than once and so forth.  These are very thinkable crimes that have been committed many times.  And there are probably laws, both federal and state, against using the machinery of the government to tamper with election results.  

But are there laws against state legislatures overruling the voters and choosing a different slate of electors?  Are there laws against private citizens declaring themselves to be the elector?  Are there laws against Congress accepting as electors people not chosen in ways established by state law?  Or against the Vice President of rejecting electors if Congress won't?  Or against Congress or the Vice President sending the vote back to the states if they don't like the results?  All of these fit into the category of things so unthinkable that no one thought to forbid them.  

So let's start with some basics.  

The U.S. Constitution Article II, Section i, paragraph 2 provides that, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . "  This is the section that leads to controversy over whether every change, no matter how minute, in election procedure requires an act of the state legislature.  Clearly, though, if a legislature decides that the people cannot reliably counted on to vote Republican while the legislature can always be safely gerrymandered, the legislature is free to have presidential electors chosen by the state legislature and not by the people directly.  In fact, that was how electors were normally chosen at the beginning.  In New Jersey, electors were originally chosen by the governor and council.  I suppose it would even be constitutional for a state legislature to make a law that presidential electors will be chosen by the central committee of the state Republican Party.  But having the electors chosen by the legislature is one thing. Having the legislature decide that the people will choose and then attempt to change the rules after the election if the legislature does not respect the outcome is quite another.  To be clear, such an action would not be a crime.  No legislation, no matter how outrageous, is a crime.  But it can be invalidated.  The Electoral Count Act (3 USC 5) provides that:

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

 (Emphasis added).  Yes, the legalese is a bit dense, but basically this means that once a state holds an election under a pre-determined process, both Congress and the state are bound by the results.  Furthermore 3 USC 15 of the same act provides that:

If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed.

This does not criminalize putting up an irregular slate of electors, but it does declare the irregular slate to be invalid.  No wonder John Eastman wanted to find this statute unconstitutional!  And I suppose it does raise interesting questions about whether one Congress can pass a statute limiting the procedural actions of a future Congress.  But the constitutional principle in the Electoral Count Act is sound.  Once a lawful vote is made, neither Congress nor the state may modify it.  If you are concerned about whether one Congress can constrain its successors in their general conduct -- well, the statute can be changed.  The change merely has to be passed by both houses and signed by the President. 

As for criminal law, Title 18 of the U.S. Code has a whole panoply of federal crimes.  Chapter 29 deals with elections.  For instance 18 USC 593, barring military inference in elections provides:

Whoever, being such officer or member [of the armed forces], interferes in any manner with an election officer’s discharge of his duties— Shall be fined under this title or imprisoned not more than five years, or both; and disqualified from holding any office of honor, profit or trust under the United States.

 This may be why Rudy Giuliani wanted the Department of Homeland Security, not the armed forces to seize voting machines.  This does not mean that such interference would have been legal if done by Homeland Security either.  Under 18 USC 595:

Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof  . . . uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, shall be fined under this title or imprisoned not more than one year, or both.

That would appear bar the Department of Homeland Security from seizing voting machines as well as the armed forces, although doing so would carry a sentence of one year instead of five.  In short, there are clear federal laws against using federal executive machinery to sway the outcome of  an election.  There is some dispute as to whether the false electoral certificates are criminal forgeries. 

But so far as I can tell, there are no laws against elected officials trying to persuade state legislatures to overturn a popular election and appoint its own slate of electors, even though the Electoral Count Act that such an action will not be valid.  And it does not appear to be illegal to attempt to persuade the Vice President or a member of Congress to violate the Electoral Count Act, at least so long as no bribe or threat is involved.   

The unthinkable has now been done.  We need laws to keep it from happening again.

A Brief Comment on the RNC Resolution

 

I am actually inclined to give Ronna Romney McDaniel the benefit of the doubt.  Maybe her resolution to censure Adam Kinzinger and Liz Cheney for "persecution of ordinary citizens engaged in legitimate political discourse" really was not meant to include the January 6 insurrection, but only to “ordinary citizens who engaged in legitimate political discourse that had nothing to do with violence at the Capitol.”*  But let there be no mistake.  If that is what McDaniel meant, then she was saying that disputing whether to accept the outcome of an election is "legitimate political discourse," and that any attempt to overcome the outcome that stops short of violence is ordinary partisan politics.

To that only one answer can be acceptable.  The question of whether to accept the result of an election is not "legitimate political discourse" or ordinary partisan politics, but foundational to our very system of elective government.  If the loser of elections does not accept the outcome and resorts to every means short of violence to overturn the outcome, then the downfall of our system may not be as dramatic as a violent revolt, but it is no less certain.

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*On the other hand, one can also argue that if that was what the censure meant, it should have said so. 

Some Unoriginal Comments on Ukraine

 The whole Ukrainian crisis has a certain air of madness to it. On the one hand, there are actually broad areas of agreement.  I think Americans all pretty much agree both that (1) a Russian invasion of Ukraine would be intolerable, and (2) we are nonetheless not willing to actually go to war to stop it.  Yes, I know, Tucker Carlson and some of his ilk are siding with Russia in this dispute, but I think we can safely assume that if Russia invaded on a large scale even Tucker Carlson would be hard-pressed to defend it.

So what is going on here?  Well, the Russians are insisting that Ukraine not be allowed to join NATO.  And, in fact, everyone more or less agrees that Ukraine is not going to join NATO any time soon.  In fact, under NATO rules Ukraine is not even allowed to join right now, since it has a disputed border with Russia.  But the overwhelming consensus is that we mustn't come right out and say so because to come out and say so would be to deny Ukraine's sovereign right to join any alliance it wants.  Um, don't allies also have the right to refuse any entrant the want also?

And, in fairness to our hawks, the Russians are also demanding that we kick former Warsaw Pact countries out of NATO much against their wishes, which is clearly a non-starter.

But the hawkish viewpoint is nonetheless that even though we are not prepared to risk war with Russia over Ukraine, we still have to stand up for Ukraine's right to do something that isn't actually going to happen because to do otherwise would be to concede Russia a sphere of influence in its near abroad, i.e., in the old Soviet Union.  And they tut-tut that supposed anti-imperialists seem to be willing to accede to Russian imperialism within its sphere of influence.  Of course, these fierce opponents of spheres of influence are really just saying that we should have a sphere of influence over the entire world, and that no one can ever reasonably oppose our uniform global hegemony.  

But more to the point, there are certain parts of the world that Russia sees as so critical to its interests that it is willing to risk WWIII to maintain domination. During the Cold War, those areas were known as the Warsaw Pact.  We conceded the Soviet Union a sphere of influence in the Warsaw Pact, not because we saw it as morally legitimate, but because we saw it as preferable to nuclear war.  Well, the areas Russia is willing to start WWIII over have retreated eastward by several hundred miles, but they haven't ceased to exist.  And ultimately, we are not willing to risk WWIII to prevent Russian domination over its near-abroad.  That means that Russia has a sphere of influence over these areas whether we like it or not.  

To suggest that we should not take this painful reality into account in our foreign policy is absurd.

Follow up:  None of this is to deny that we should do our best to deter an invasion.  But if there is any way to defuse this standoff without a resort to war, it will probably involve allowing Russia some sort of symbolic concession to allow them to back down without losing face.  And who can doubt that if we do reach such a resolution, the usual suspects will cry appeasement, which is their name for anything short of unconditional surrender.