The Pause That Doesn't Refresh: Inconvenient Truths & Uncomfortable Questions

ANDREW CULLEN / REUTERS

In the blink-of-an-eye space of only seven days, the Russia scandal shifted into overdrive with the indictment of 12 Russia intelligence officers and arrest of a sex-peddling covert Russian agent in Washington, President Trump's extraordinary capitulation to Vladimir Putin at the Surrender Summit, as well as a host of other pot-boiling developments.  And so this may be an opportune time to (ever so quickly) pause and consider some inconvenient truths and uncomfortable questions before we're punched in the national gut by the next round of revelations. 

First a disclaimer: There is a risk of succumbing to gotcha-ism, as well as false equivalencies, in pondering aspects of the Russia scandal that cast the U.S. in less than a favorable light.  What follows sometimes does exactly that, although none of it should diminish the enormity of the Russian cyberattack on Hillary Clinton's 2016 campaign in the service of helping elect Trump nor confer a moral equivalency on the U.S.'s own crimes, misdeeds and questionable behavior.  

Among the inconvenient truths and uncomfortable questions are these: 

THE U.S. ALSO MEDDLES IN ELECTIONS (PART I) 

As inconvenient truths go, they don't come any bigger than the reality that the U.S. has been trying to influence elections for decades, including the use in recent years of some of the very cyber tools that Russia has successfully employed. 

The U.S. has departed from its professed democratic ideals on innumerable occasions. The CIA helped overthrow elected leaders in Iran and Guatemala in the 1950s and backed violent coups in several other countries in the 1960s while plotting assassinations and supporting brutal anti-Communist governments in Latin America, Africa and Asia.  Then there are the wars in Vietnam, Grenada and Iraq.  

One (now outdated) study found 81 instances of election interference by the U.S. and 36 by the Soviet Union/Russia between 1946 and 2000, including overt and U.S. meddling in a Russian election. 

That occurred in 1996 under a Democratic president when American fears that Communists would defeat President Boris Yeltsin for re-election and doom perestroika resulted in a Bill Clinton-led initiative to float a $10 billion International Monetary Fund loan to Russia four months before the election and dispatching a team of political consultants to advise Yeltsin.    (There also is the possibility that Hillary Clinton's State Department intervened in Russia's 2011 legislative elections.  I suspect that but don't know for sure.) 

More recent U.S. election interference has not been morally equivalent to Russia's 2016 meddling, or so goes the rationalization of American exceptionalists, although I am not one.  Nevertheless, it works for me to an extent. 

This is, that rationalization goes, because more recent U.S. efforts have generally been aimed at helping non-authoritarian candidates challenge dictators and promote democracy while Russia has done the opposite.  This includes the successful effort in 2000 to defeat Slobodan Milosevic, the Serbian nationalist leader, by providing American political consultants and millions of American-funded stickers with the democratic opposition's clenched-fist symbol and "He's Finished" printed in Serbian. 

Some experts believe that the U.S. remains the most powerful and skillful cyberpower. 

It's hard to argue with that when you consider the huge range of U.S. cyber bullying abroad revealed by Edward Snowden and the Shadow Brokers in making public the dirty work of the NSA and CIA.  Indeed, U.S. intelligence agencies break into computer networks abroad at an astounding rate and certainly on a greater scale than any other intelligence service in the world.  This includes Stuxnet, the successful cyber operation against Iranian nuclear weapons centrifuges. 

Then there is the U.S. Internet Freedom program, which provides cyber tools and training to activists in authoritarian nations to facilitate political change, and the government's covert assistance of social media giants such as Twitter to help activists bring down foreign governments.   

THE U.S. ALSO MEDDLES IN ELECTIONS (PART II) 

Barack Obama was a good president and perhaps a great one.   

But even giving Obama the benefit of the doubt, he and his closest aides, and to a great extent the U.S. intelligence community, failed to grasp that the very foundation of American democracy was under attack when the first intimations of Russia's intention to disrupt the 2016 election became known.   

The inconvenient truth is that knowledge began seeping into the vast intelligence gathering apparatus of the NSA, then the CIA and finally the FBI, beginning in early November of 2014 -- two years before the presidential election -- when Dutch intelligence provided U.S. authorities with solid evidence that Russians hackers might target the Democratic National Committee's computer system and that FSB hackers using the name Cozy Bear were preparing for an attack on State Department computers.  The State Department computers were indeed breeched and classified information stolen, but U.S. official took little action and certainly none of consequence.  

Perversely, this failure to grasp continued through the eventual DNC hack and beyond Election Day.  

The overlapping investigations, inter-intelligence agency rivalries and attendant minutiae had the effect of obscuring the enormity of what Putin wrought with an assist from Trump and his confederates.   Yet even when the success of Putin's assault had become glaringly obvious, Obama and other key players still fumbled and stumbled.    

In the end, fears that the White House would be accused of trying to influence the election, which of course is exactly what Putin did with the Trump campaign's help, as well as the overconfident view that Hillary Clinton would be the walk-off winner of the ferociously contested election, enabled a profoundly unqualified nut who never seriously thought he would win to wrest the keys to the national car from an eminently qualified if problematic opponent.  

As they crashed around in the months before the election like a drunk looking for his car keys, (the national car keys?), Obama and his aides considered dozens of options for deterring or punishing Russia.  These included cyberattacks on its infrastructure, the release of CIA-gathered material that might embarrass Putin, and sanctions so tough that intelligence officials predicted they could "crater" the Russian economy.  

While Obama's back-channel warnings to Moscow to cease and desist as the election played out may have prompted it to abandon plans to escalate its attacks even further, including sabotaging U.S. voting systems, in the end Russia got off with a laughably negligible toughening of existing Obama-imposed sanctions that when placed in the overall context of the Russia scandal was profoundly inadequate.  

This weak-kneed response -- the expulsion of a mere 35 diplomats and closure of two Russian compounds -- was an open invitation for the Kremlin to work future mischief against the world's sole remaining superpower, which it has as the 2018 midterm elections approach, and advance Putin's dream of returning the former Soviet Union to its Cold War glory, which enabler Trump has helpfully abetted, most glaringly at the Surrender Summit in Helsinki.       

In the context of the U.S. being the preeminent cyberpower with the biggest toolbox and most experience, the failure to stop Russia, thereby altering the course of history by gifting America a profoundly unqualified kook who has set about dismantling its core values, is immense.    

MUELLER'S PROBE PUTS AMERICANS AT RISK

Special Prosecutor Robert Mueller's 14-month-old investigation, which has come under sustained attack from right-wing Republicans, has now resulted in over 100 criminal charges against 32 individuals, including 25 Russians and three Russian companies.  Then there is covert agent Mariia Butina, who was busted by Justice Department national security prosecutors. 

All good, you say?  Well, I do too. 

Amid all the doom and gloom, these indictments represent an extraordinary assertion of Justice Department power and independence in the face of Trump's ceaseless nattering about a "witch hunt," his disregard for the rule of law, efforts to demean and undermine the DoJ and FBI, and neuter Mueller with the connivence of Vichy House Republicans. But here's another inconvenient truth: How will the U.S. respond if the tables are turned and China and Iran -- and Russia under the less cordial circumstances of a Trump successor -- name and indict U.S. officials?   

Every one of the U.S. intrusions in another country outlined in the first section of this post violated those countries' criminal laws --  in particular laws prohibiting unauthorized computer access and damage -- no less than do the Russian violations of U.S. laws meticulously detailed in Mueller's indictments.   Yes, each side breaks the laws of the other in the contemporary Great Game, the cyber version of the epic 19th century political and diplomatic confrontation between the British and Russian empires over Afghanistan and neighboring territories in Central and Southeast Asia. 

The Shadow Brokers revealed the identities of specific NSA hackers and other operators. Russia and China and perhaps even Iran and North Korea, should Trump's flimsy diplomat victory with Pyongyang continue to unravel, know who to charge criminally and for what. And could the U.S. protect the many private contractors (Snowden was one) assisting intelligence agencies if they found themselves abroad and were indicted by a foreign power?  Probably not. 

It is notable that the U.S. has not claimed that Russia's 2016 misdeeds violated international law and infringed on American sovereignty.  It is easy to write that off to Trump's fawning obeisance to Putin, but other than claims of "crimes against the United States" in the indictment of Russian nationals, neither has the special prosecutor.   

This may be because Mueller understands that drawing this line and defending it would require that the U.S. acknowledge it too has interfered in elections, renounce those actions and pledge not to do them again.   

  INDICTING ASSANGE HAS CONSEQUENCES 

The deep and deeply troubling role of WikiLeaks in Russia's 2016 election interference is undisputed and as unindicted co-conspiritors go, they don't get much bigger than Julian Assange, whose embrace of Putin and betrayal of WikiLeaks' founding vision is so immense, twisted and selfish as to still beggar belief. 

But therein lies another inconvenient truth.  If Mueller goes after Assange, he risks indicting him for something American journalists do every day.  

Newspapers, including but not limited to The New York Times and The Washington Post, publish information stolen by digital means and openly solicit such information through SecureDrop portals, thereby aiding leakers of classified information whose motives sometimes are suspect.  

And even if a Mueller indictment against Assange could be crafted to get WikiLeaks but spare The Times, a successful prosecution for conspiring to publish stolen information would certainly narrow protections for the very mainstream journalists who have published one sensational story after another about Trump's aberrancies, considerably enhancing our knowledge of the scandal as well as helping Mueller in his own search for the truth.  

TRUMP STILL MIGHT GET OFF

Donald Trump is not just a bad president, he is easily the worst in U.S. history.   

But yet another inconvenient truth is that Trump may yet skate because of the Constitution's many-layered protections of the presidency, the failure of a complicitous Congress for whom governance is a dirty word and right-leaning Supreme Court to fulfill their constitutionally mandated responsibilities to rein in an unchecked president, the extremely high bar of impeachment and uncertainty over whether a sitting president can be criminally indicted. 

History is no guide here.   

Andrew Johnson and Bill Clinton were impeached and Richard Nixon would have been had he not resigned under pressure from congressional Republicans with the courage today's GOP toadies -- some of then as traitorous as their Dear Leader -- utterly lack. 

Johnson and Clinton were acquitted by the Senate, Johnson for a number of egregious acts that merited removal and Clinton because of the deeply partisan nature and frailty of the case against him. 

Nixon unquestionably was a crook, but even his crimes pale in comparison to Trump's. 

The Russian hackers, in fact, are the contemporary equivalents of Nixon's Watergate burglars, the only difference being the advances in technology in the 45 years between those crimes.  Nixon's burglars broke into the Democratic campaign offices in the Watergate complex to tap phones and steal documents.  The Russian hackers used malware to achieve the same goal. 

Donald Trump was almost certainly aware of that, as well as the many instances in which campaign officials, including his son and son-in-law, met and worked with Putin's proxies to cybersabotage Clinton's campaign knowing that he approved. 

And yet he still could get away with it.

This post is based in part on a Lawfare essay by Jack Goldsmith.

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