Yeomans Work

Time to Start Asking the Forbidden Question: Did Russia Swing the Election to Trump?

October 6, 2017

I previously expressed concern that the public would not be prepared to process big developments in the Russia investigations because Congress has failed in its educational responsibilities.

The tepid mid-term press conference held by Sens. Burr and Warner this week did nothing to allay that concern. The big takeaways were that the Senate Intelligence Committee has not yet determined whether the Trump campaign colluded with Russia and it has exhausted its efforts to corroborate or refute the accuracy of the highly incriminating dossier compiled by former MI6 agent Christopher Steele. Indeed, Chairman Burr expounded on the inability of the Committee to speak with Steele. Surely, it must have been embarrassing when, after the press conference, news broke that Mueller’s investigators had traveled over the summer to London to interview Steele. Well, keep at it, Committee, and please let us know how it’s going in another nine months.

In fairness to the Committee, it lacks some essential tools to conduct a successful investigation. It must necessarily take a backseat to Robert Mueller’s criminal investigation. While the Committee has some able investigators, it does not have the superstar firepower of Mueller’s staff, which was chosen for the specific needs of this investigation. While the Committee has subpoena power, it lacks the power of a grand jury to issue indictments that can lead to deprivation of liberty. While the Committee can ask a federal court to grant immunity for witnesses that will prevent use of their testimony against them, it must do so sparingly so as to avoid jeopardizing Mueller’s ability to prosecute successfully. Finally, the Committee is just that – a committee. It consists of multiple large-ego personalities whose partisan interests complicate decision-making and inevitably detract from the Committee’s ability to pursue the evidence without hesitation wherever it leads.

Because of Congress’s relative silence and Mueller’s almost complete silence, the Russia matter, which remains of surpassing interest to a conscientious minority, threatens to fade into ho-humness. Fortunately, Trump seems intent on preventing that. The inept and undisciplined strategist cannot stop tweeting denunciations of the investigations and everyone involved. He has continued his efforts to get somebody – anybody – to shut down the whole mess. After, among other things, firing James Comey, denouncing Jeff Sessions for recusing himself, using Rep. Devin Nunes as a stooge, and floating the notion of pardoning his people, he has now turned to denouncing the Republican leaders in Congress for permitting the investigations to continue. But for Trump’s ignorance, clumsiness, and lack of self-control, much of the country might have moved on.

A principal animator of Trump’s bluster against the Russia investigations has been his concern that they threaten the legitimacy of his election. As a consequence, he has strained to exaggerate the size of his victory and to continue to harp on the weaknesses of his opponent. He has pushed back hard against any suggestion that the outcome might have been affected by Russian interference. Trump’s critics have acquiesced in staying away from the central question of whether the outcome of the election was affected. Strategically, this posture doubtless made sense initially to members of Congress who wanted to avoid making the inquiry appear partisan and who understood that Republican leaders, including committee chairs, would not tolerate a full assault on the legitimacy of the election.

The investigations, however, have now matured sufficiently that they cannot be derailed without serious political consequences, raising the question whether it is time to start discussing openly whether the Russian invasion installed an illegitimate president. The advantage of doing so is not that it will speed removal of the foreign-fueled interloper, but that it will energize our national inquiry into what happened. Removal through impeachment is not currently realistic, but a full accounting of the scope, depth, and consequences of Russian meddling is. Dancing, however, around a central question – whether foreign interference affected the outcome – will handicap that accounting and its acceptance by the public. Without addressing that issue, the inquiry too often has the character of a detached exercise and, ironically, opens it to criticism that it is being kept alive largely to harass Trump.

The question provides focus, purpose, and an organizing principle to the sweeping inquiry. The evidence is mounting. The Steele dossier apparently is playing an important role in Mueller’s inquiry. Facebook has finally had to acknowledge that Russian operatives bought ads helpful to Trump and harmful to Clinton during the campaign and that Michigan and Wisconsin were targeted. Moreover, specific, vulnerable groups in those states were targeted either to suppress the vote for Clinton or promote Trump. It defies common sense to think the targeting occurred without the guidance of sophisticated political operatives. Jared Kushner oversaw Trump’s digital effort. The roles of Facebook and other social media are only now coming into view. The Department of Homeland Security has acknowledged attempts to hack the election systems of twenty-one states. We don’t yet know the full extent of these intrusions – whether, for example, they tampered with voter rolls, preventing people from voting when they arrived at the polls. Trump supporters have asserted repeatedly that vote tallies were not affected, but we can’t yet be certain. The electoral machinery of states is complicated and must be examined carefully.

This new evidence adds substantially to the accumulated evidence of Russian connections, favoritism toward Russia, and Trump’s efforts to obstruct the investigations. It is time to stop shying away from the question of whether the Russian attack succeeded in swinging the election to Trump. Avoiding that issue saps the public’s energy for the investigations and will make it easier for Trump supporters to dismiss the significance of the outcome.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.