Congress, make election meddling illegal
By JEFFREY H. SMITH AND JOHN B. BELLINGER III | Special to The Washington Post | Published: February 10, 2020
The Senate, by a nearly straight party-line vote, has now acquitted President Donald Trump of the charges in the articles of impeachment brought by the House. The president had insisted that his dealings with Ukraine over military aid and a possible investigation of Hunter Biden, the son of former Vice President Joe Biden, were “perfect.” However, even as Republican senators acquitted him, several disagreed, saying his actions were wrong but did not break any law.
In response, the House impeachment managers argued that the constitutional grounds “high Crimes and Misdemeanors” for impeachment did not require violation of a specific federal criminal statute.
Whether one views the president’s actions as justifying removal from office or not, we believe that the prospect of foreign interference in U.S. elections is today so grave — whether initiated by a foreign power or invited by a candidate — that Congress must make such activity illegal.
Doing so would be consistent with history. For example, after the Vietnam War and President Richard Nixon’s resignation over Watergate, Congress enacted a series of laws to rein in executive power. These included the establishment of intelligence oversight committees in Congress, the Foreign Intelligence Surveillance Act, the War Powers Resolution, and the Congressional Budget and Impoundment Control Act (which the Government Accountability Office concluded Trump had violated).
Former special counsel Robert Mueller looked exhaustively at whether the Trump campaign had colluded with the Russian government to win the 2016 election. Mueller found that the Russians had interfered in the election in a “sweeping and systematic fashion,” and he indicted 26 Russian nationals, including 12 intelligence officers, for conspiracy and hacking into U.S. computers. Although he found that the Trump campaign had welcomed Russian interference, Mueller could not establish that the campaign had conspired or coordinated with the Russian government in a manner that violated the law. Current law prohibits candidates from accepting money from foreign sources, but it is not clear on nonfinancial assistance.
The Mueller investigation showed that it is now time to close that gap. Congress should promptly adopt a criminal statute prohibiting any candidate for federal office, including the president, from soliciting or knowingly accepting material assistance from a foreign power that could influence an election.
Drafting such a statute will not be easy. There are many constitutional and policy interests that must be balanced. For example, foreign policy is often a key issue in presidential campaigns, and candidates can be tempted to put a finger on the scale by inviting foreign influence. Narrowing the prohibition to soliciting or knowingly accepting “material assistance” helps, as courts have had experience interpreting laws prohibiting material assistance to terrorist groups. Still, where is the line between appropriate and illegal?
Rumors of dark activity in presidential campaigns have swirled for years. For example, in 1968 the Nixon campaign secretly told President Nguyen Van Thieu of South Vietnam that if he withdrew from peace talks then underway with the Viet Cong, he would get stronger support in the war if Nixon won the presidency. Historians have argued over the consequences of this effort and whether Nixon knew about it. But Thieu did withdraw from the negotiations, and Nixon was elected.
On the other hand, in October 1992, James Baker III, who had stepped down as secretary of state to serve as chief of staff to President George H.W. Bush, rejected a request to the president by several members of Congress to seek the help of Russia and Britain to dig up dirt on Democratic candidate Bill Clinton. Baker told the congressmen “we absolutely could not do that” and wrote a memorandum for the record. Baker didn’t need a statute to know what was right and what was wrong.
The country can’t rely on all government officials to possess that sort of integrity, so Congress must act now. Congressional Republicans have been willing to impose sanctions on Russia for interfering in the 2016 election, and, more recently, some have voted to limit the president’s authority to start a conflict with Iran. We hope that Republicans — even if they voted against impeachment or conviction of the president — will similarly understand why a carefully crafted statute prohibiting solicitation or knowing acceptance of foreign interference in U.S. elections is necessary, and that the president will sign it into law.
Jeffrey H. Smith, a senior counsel at Arnold & Porter, served as general counsel of the CIA (1995-1996). John B. Bellinger III, a partner with Arnold & Porter and adjunct senior fellow at the Council on Foreign Relations, served as legal adviser for the National Security Council (2001-2005) and for the State Department (2005-2009).