What Constitutes Interference in an Election?

Questions of The Day: 

1. Congressman Lewis says Trump is not legitimately president because of Russian interference in the election, saying that “The Russians participated in helping this man get elected. And they helped destroy the candidacy of Hillary Clinton.”article).
2.  Rosie O’Donnell advocates “IMPOSING MARTIAL LAW – DELAYING THE INAUGURATION – UNTIL TRUMP IS ‘CLEARED’ OF ALL CHARGES” ( or showing he has no financial ties to Russia – article)

Since O’Donnell is a known Trump bitter enemy and has no official position, her comment, though illegal, is not as important as that of Lewis, who is a member of Congress and seems to be thinking of taking up the cause, so I’ll address Lewis first.

Then I’ll cite the law under which O’Donnell should be tried and if convicted sentenced to up to 20 years in jail.  This is literally possible, so stay tuned … !

The accusations:

What exact accusation does Lewis make, who is he accusing, and how is that supposed to invalidate the election?  If it is unclear whether it invalidates the election, what precedent have U.S. presidents, members of Congress, and private citizens set as to what constitutes legitimate or non-legitimate interference in an election.

First some examples that definitely call for invalidation:

1. If any party, domestic or foreign, in any way changed physical votes that had been cast, or was able to delete votes, or cast spurious votes, the votes would have to be recounted.  If no recount was possible, the Electoral College would not be held to be viable, and the Constitution provides the House would decide and Trump would be president anyway – Unless Trump himself was convicted of rigging the election.  Audits were conducted, and a huge recount campaign waged by Jill Stein, but none of these things could be shown.  There was no remote suspicion.

Umm… that’s about it.  There is no #2.  Here are some things you might think, but that do not actually invalidate an election:

1. If any party, domestic or foreign, used intimidation or force to keep people from voting, there are legal penalties against that person.  Were it sufficiently disruptive, election officials might have some leeway to extend voting, or even repeat the election, as they would in the case of a natural disaster, but it is not automatic invalidation.
2. Even assassinating a candidate does not invalidate an election.  Some high profile candidates have been assassinated, for example Robert Kennedy.  The law only provides punishment of the perpetrators.
3. Fake news, unsubstantiated rumor and similar tactics – called “dirty politics” – have been part of the American electoral process for a long time.  Before the Internet age, letters would be mailed to arrive the day before the election, so that the opposition candidate would not have time to respond.  I remember getting some of these.  The electorate is expected to be intelligent enough to filter the garbage and identify probable scams and the credibility of information, not merely to believe everything.   By the way, in Russia publishing such information less than 5 days before an election is illegal, a good idea I think, and US affiliated organizations have violated this law (see article).
4. No distinction is made in our law as to whether “dirty politics” is carried out by domestic or foreign sources, except possibly for punishment.  Domestically it would be a civil court matter of libel.  If serious enough, foreign agents could possibly be charged with espionage, but there is no precedent for anyone ever having been convicted of such, so it would be doubtful.  Foreign and domestic governments give out false information all the time, just as they spy on each other, and we do not prosecute them too heavily for it for fear they would prosecute our agents.  Usually we just kick them out of the country for a while, which Obama has already done.

As far as I can gather, the accusations are either against Trump or Russia:

Against Trump they are …

1. That he has or might have financial ties to Russia.  Of course, he has ties to many countries.  For that matter, I own a Russian mutual fund because it is a leveraged play on the oil recovery.  This is neither illegal nor an obstacle to becoming president, since presidents are exempt from conflict-of-interest rules (like it or not).
2. … Maybe that he says things people don’t like?  Actually there isn’t a viable #2

Against Russia …

1. That they hacked the DNC and released embarrassing information.  First, despite what the “intelligence community” says, who have only offered an indirect argument, and an accusation is merely an accusation until proved in a court of law.  Countries routinely ignore each other’s hacking, such as the U.S. ignoring China’s hack of millions of Civil Service records (including mine) which they could use for extortion or identity theft.  I’m actually not worried, and neither is the US government.  They did nothing except provide credit monitoring.  China won’t use the information that way because they the data would change and not be useful.
2. That they released embarrassing and true information on the DNC.  This again is not proven (Julian Assange says it was not Russia), and even if it is, so what?  It is not illegal to release information on the DNC.  It is not an arm of the government and has no state secrets.  Chelsea Manning was an employee of the US government when he/she released state secrets, and therefore is in jail.  Assange has volunteered to come to the US and stand trial if Obama will pardon Manning (who is in solitary under suicide watch).  Assange did no more than the NY Times and Washington Post has done many times, and I’m sure Assange knows he would win a trial under a fair administration.
3. That they released fake news on Facebook.  This also is merely an accusation not proved in a court trial.  But it is not subject to trial as it is merely dirty politics as already discussed.  I can’t think of a charge that can be brought.  Any organization that does not vet its sources is not a news organization, merely a gossip engine.  If you believe everything you read on Facebook, you are probably more concerned with abduction by UFOs than with the presidential election.
4. That they preferred Trump over Clinton and said so.  Well, Obama preferred that Britain remain in the EU, and made a special trip to Britain to advocate that point of view and wrote an opinion piece in a paper there, and I did not see the Brits complaining. Furthermore, the US has from time to time, and many times under the Obama administration, “preferred” one government over another in Libya, Iraq, Syria, Cuba, etc. and sent arms to rebels and occasionally air power and sometimes ground armies to enforce the preference.  In 1953 Eisenhower ordered the overthrow of a democratically elected government in Iran and they’ve been mad about it ever since.  If you are going to complain about Russian preferences in US presidents, first apologize to the Iranians, Syrians, etc., etc.

In other words, there are no serious charges against either Trump or Russia.  It is no secret that Putin does not like Hillary Clinton for the specific reason that Clinton said in 2011 that the Russian election was dishonest and unfair (article), and Putin strongly suspected her (as Secretary of State) of promoting and sponsoring demonstrations, which is interference of a high order (and illegal even in the US if the object of the demonstrations is violent or unconstitutional removal of a government).  If Russia did hack the DNC and release information, it was no doubt so Hillary would see exactly what this felt like.

Now let’s talk about Lewis and O’Donnell …

Accusations against the accusers:

Lewis is incorrect and out of line, but has not actually advocated any action except his own, to boycott the inauguration.  We can write him off as a poor political strategist and perhaps not very smart, but that is all.

O’Donnell has advocated military (i.e. violent, by force of weapons) overthrow of the US government.  She has also advocated this in response to an accusation, not a verdict, and advocated a “guilty until proven innocent” approach.  My statement requires explanation in three parts:

1. O’Donnell advocated “martial law” for the purpose of delaying the inauguration.  The US Constitution does not mention martial law, but provides for suspension of habeas corpus (ability to detain people without charges) and activation of the militia in time of rebellion or invasion (Article 1, Section 8).  I don’t see any Russian troops, nor unlabeled “green men” like in Ukraine, and there is no accusation of invasion.  If there is rebellion, maybe O’Donnell qualifies?  In other words, O’Donnell advocates using military force to interfere in Constitutional processes, in a way not provided in the Constitution.
2. In other words, O’Donnell is advocating overthrow of the US Government by military force.  This is illegal under 18 U.S. Code § 2385 “Advocating overthrow of Government.”  For the military option, the maximum penalty is 20 years in prison.
3. Proving a negative can be very difficult which is why in the US we have a system of innocent until proven guilty.  Even had O’Donnell not broken the law with the method she advocates, taken alone her statement about suspending the inauguration until accusations are cleared is un-American and outside our Constitution.  It is quite possible to impeach a president who has actually done something wrong even if his party is in power (e.g. Nixon), and that would be the way to handle it should any criminal accusation against Trump be proven.  BUT, the accusation Rosie makes isn’t even relevant, since financial conflicts of interest are allowed.

I am not sure whether to actually send O’Donnell to jail (assuming a conviction).  It might make her a martyr.  A guilty verdict would strip her of voting rights even if the sentence were suspended.  Or she might be sentenced until she apologizes.  Trump might even pardon her.  Frankly I hope he pardons Manning and brings Assange here and acquits him.

I am thinking of starting a petition drive to bring charges against O’Donnell.  If you would support this, please use the contact link (above, in the header) to let me know.

 

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