Monday, November 16, 2020

About That Foreign Election 'Meddling' EO

A lot of people are exercised about Trump's Executive Order (EO) regarding the interference of "Foreign Powers" in our elections. You can read the EO here: Imposing Certain Sanctions in the Event of Foreign Interference in a United States Election.

The title should tell you why I'm not as excited as others about that EO. For starters, it focuses on "foreign powers" rather that US Persons. "Foreign Power" is a technical term in US national security law. For example, here's a definition of Foreign Power in FISA--please read it carefully:

(a) Foreign power” means—

a foreign government or any component thereof, whether or not recognized by the United States;
a faction of a foreign nation or nations, not substantially composed of United States persons;
an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
a group engaged in international terrorism or activities in preparation therefor;
a foreign-based political organization, not substantially composed of United States persons;
an entity that is directed and controlled by a foreign government or governments; or
an entity not substantially composed of United States persons that is engaged in the international proliferation of weapons of mass destruction.

I'm here to tell you that there are serious problems with applying this definition to domestic political parties or corporations. The mere fact of US persons or corporations being headquartered overseas does not ipso facto make them Foreign Powers. True, some such entities might be construed--although this too is problematic--to be "agents of a foreign power." Nevertheless, what the EO is talking about is imposing "sanctions" on "foreign powers. That doesn't excite me--at least not for now. What would excite me is Trump's legal team bringing forward proof of election fraud by US Persons, which is what they are working to do.

That said, there is an aspect of this EO that could prove important. Shipwreckedcrew gets into that aspect, which has to do with declassification. The EO is not likely, by its terms, to lead to revelations of the nature and extent of actual election fraud in Election 2020 which would lead to causing a redo. However, it could, by its terms, lead to declassification of material that might reveal collusion between US Persons--i.e., both political actors as well as private actors--and Foreign Powers. 

Such revelations would be a bombshell that would have domestic political consequences, but I'm not at all clear that such revelations could lead to the election itself being overturned. For that result to happen, I continue to believe, Trump's legal team will need to demonstrate that election fraud occurred such that reversing that fraud would result in certification that Trump actually won enough states to gain 270 electoral votes. Of course, if our Intel agencies possess proof that foreign governments actually committed election fraud on that scale, that would be different--but I think they will have been far too smart to do that. I continue to believe that that was done by US Persons rather than by Foreign Powers. Moreover there's nothing in the US Constitution that says we can't elect a corrupt individual to be present--even an actual crook. We have remedies for that situation, such as impeachment, but an election redo isn't one of those remedies to the best of my belief. For that we need proof that fraud took place sufficient to change the results of the election.

With regard to the EO, SWC points out the EO contains deadlines for action. Those deadlines could be important for triggering the types of revelations we're talking about--collusion of US Persons with Foreign Powers. You can read all about that here:

The Trump Administration Will Produce a Report on Foreign Interference in the Election by December 18

There are two important deadlines.

The first pertains to the Director of National Intelligence (DNI)--in other words, John Ratcliffe. Here's the relevant portion of the deadline provision:

Section 1. (a) Not later than 45 days after the conclusion of a United States election, the Director of National Intelligence, in consultation with the heads of any other appropriate executive departments and agencies (agencies), shall conduct an assessment of any information indicating that a foreign government, or any person acting as an agent of or on behalf of a foreign government, has acted with the intent or purpose of interfering in that election. The assessment shall identify, to the maximum extent ascertainable, the nature of any foreign interference and any methods employed to execute it, the persons involved, and the foreign government or governments that authorized, directed, sponsored, or supported it. The Director of National Intelligence shall deliver this assessment and appropriate supporting information to the President, the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security.

If the nature of foreign interference includes collusion with US Persons, the report by the DNI could disclose that. Again, however, that report is aimed at imposing sanctions on foreign governments, and IMO is unlikely to lead to a redo. SWC adds:

John Ratcliffe is the DNI and it has been reported in recent days that Ratcliffe is in a fight with the Intelligence Community over declassifying certain information based on the supposed objections that doing so will expose “sources and methods.”  I think this fight is about what Ratcliffe is planning to disclose in the report required by the EO.

Surprised? Me neither.

The other deadline pertains to the AG--meaning, to Bill Barr. You'll want to consider this closely. Here's the idea. 45 days after the DNI report, the AG and SecDHS are to deliver a report to, inter alios, the President. That means the report would be due by February 2, 2021. Well after the inauguration date. Also well after the date that Barr would have been fired. Of course that report could be completed earlier. Now, here's what the report from the AG is supposed to address:

(i) the extent to which any foreign interference that targeted election infrastructure materially affected the security or integrity of that infrastructure, the tabulation of votes, or the timely transmission of election results;

If you want to believe that actions by, say, China "materially affected ... the tabulation of votes" you're free to do so. I have a much higher estimate of how smart the Red Chinese are. Not so much the intelligence of domestic political actors. As for the security or integrity of our infrastructure, I continue to believe that the infrastructure--with all its insecurities--was deliberately put in place by US Persons. Not by any Foreign Power.


  1. The elections belong to the people, not the govt.

  2. Zerohedge has a reprint of an Epoch Times story referring to Alan Dershowitz's speculation that the real goal of team Trump is not to win a majority, but to cause there to be a failure of a majority in the electoral college for Biden. All Trump needs to do is cause states to fail to certify votes by the deadline.

    Not sure how this would play out. If that's the play, neither side will be viewed as legitimate by the other side no matter the result. This might be the cleanest way legally speaking to clean up an electoral mess after concerns of fraud. But it would be a political mess.

    1. “But it would be a political mess.”

      Maybe not if, in the wake of the clean-up, the other side’s shenanigans finally comes out in prosecutions.

  3. The EO is not likely, by its terms, to lead to revelations of the nature and extent of actual election fraud in Election 2020 which would lead to causing a redo.

    There would not be a "redo" of the election.

    Rather, the election would be transferred from the Electoral College to the US House of Representatives. There, the deadline to complete an investigation and to elect the US President would be January 20, 2021.

    1. In the House, the investigation would be managed by the Democrat majority.

  4. The EO is not directed at "foreign powers." It speaks in terms of "a foreign government, or any person acting as an agent of or on behalf of a foreign government, has acted with the intent or purpose of interfering in that election." That's for starters. Then it targets "foreign interference" and provides that any assets under US control of "the following persons are blocked." Those persons are enumerated as persons found:

    (i) to have directly or indirectly engaged in, sponsored, concealed, or otherwise been complicit in foreign interference in a United States election;

    (ii) to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any activity described in subsection (a)(i) of this section or any person whose property and interests in property are blocked pursuant to this order; or

    (iii) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property or interests in property are blocked pursuant to this order.
    So, just for example, to pick a popular boogeyman (and I'm not implying by that reference that he shouldn't be picked), George Soros being involved in this would be foreign interference. Companies based in Canada, Spain, Frankfurt or Venezuela that were involved in any way in providing "financial, material, or technological support" of interference in an election would be "foreign interference." AND, if any of those did it, anyone assisting them, even if a US citizen, would fall within the parameters. It's much, much broader than "foreign powers" as used in FISA.

    Andy S.

    1. Go back and reread with a bit of attention. The FISA definition of foreign powers and agents thereof is actually broader than "foreign governments." It specifically includes non-state actors and their agents.

      A foreign government IS a foreign power. Read the definition. An agent of a foreign government IS an agent of a foreign power. Read the definition. That's for starters.

      What basis do you have for believing that the Dem election fraud was directed and controlled by foreign powers or their agents, anyway? I think they were acting on behalf of a domestic political party and its candidate.

      When it says that assets under US control of certain persons are "blocked" do you think they're blocking the assets of US persons via EO? How would that work without further legal process?

      Please get your facts straight before you challenge me. So, just for example: "George Soros being involved in this would be foreign interference."

      Really? How does that work when Soros is a US citizen?

      As for companies based overseas, you still have to show that any support they provided to US actors was actually targeted at interference in an election. And the result? They'd be subject to sanctions.

      I'm not looking for sanctions. I'm looking for remedies for election fraud--remedies that would REVERSE that fraud. Sanctions don't do that.

    2. ANDY: The EO is not directed at "foreign powers."

      As the FISA definition indicates, "foreign governments" are a subset of "foreign powers." Foreign power is a more inclusive term than foreign government.

      EO: "Although there has been no evidence of a foreign power altering the outcome or vote tabulation in any United States election, foreign powers have historically sought to exploit America’s free and open political system."

      Oh, so the EO actually DOES reference "foreign powers."

      ANDY: Then it targets "foreign interference" and provides that any assets under US control of "the following persons are blocked."

      Why did you not continue the quote? The very next sentence specifies that the persons targeted are foreign persons.

      EO: "the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in: any foreign person determined by ..."

      US persons are not blocked by the EO--such an EO would be unconstitutional.

      As for companies providing "support", that support has to be fore "interference" specifically, which is defined in the EO:

      EO: "(f) the term “foreign interference,” with respect to an election, includes any covert, fraudulent, deceptive, or unlawful actions or attempted actions of a foreign government, or of any person acting as an agent of or on behalf of a foreign government, undertaken with the purpose or effect of influencing, undermining confidence in, or altering the result or reported result of, the election, or undermining public confidence in election processes or institutions;"

      So that's what you'd have to prove the company was supporting--not just any support.

      And the result would be sanctions.

    3. Mark, I apologize; I did overlook the reference to foreign persons in the sanction section. So I agree with you that a US citizen cannot be the subject of a sanctions order. And I agree with your overall point that the EO cannot be used to target US persons or US entities. But I still disagree with you that the EO is “directed at” (my language) foreign powers. Yes, the EO “references” (your characterization in your comment) foreign powers—in the context of stating that there is no evidence of foreign power influence on elections but that we know it’s not for lack of trying.

      If you are correct that the obvious influence that we have all been commenting upon in our elections was strictly on behalf of US citizens and entities, then I agree this EO is irrelevant. I don’t share your view. I think there were efforts by enemies, both foreign and domestic, to influence the election. The only question I have is whether they were working in concert or independently. Given the extensive ties between the Democrat party and the ChiCom party (Biden, Feinstein, Clinton and his campaign bundler, to name only a very few, I think it likely that a case can be made that they were tied together. Add in the undeniable fact that Trump has absolutely derailed the Chinese game plan for global power and they hate him and fear him. The way the EO works, all that needs to be done is to make that case—within the executive branch. This is not fought in the first instance in the courts. As I understand the way the EO works, the USA makes the finding and blocks the assets—without notice. Then the foreign person gets to go to court to try to unblock. The courts get involved after the fact.

      The EO targets foreign persons directly— not foreign powers. (By targeting foreign persons it will likely have an effect upon foreign powers, but that’s not the point and it’s not where the sanctions have bite.) It targets foreign persons if they are acting as an agent of “or on behalf of” a foreign government and they take an action in aid of influencing, undermine, etc. a federal election.

      How hard is it to conclude that someone is acting as an agent of a foreign government? Well, to turn to an apt FISA analogy, you might ask Carter Page who was a CIA asset yet accused in the FISA application of being an agent of Russia. Unfortunately for Page, it was a pretty low bar. Keep in mind that Trump is reportedly about to vastly expand the number of Chinese-owned companies that are deemed, in essence, to be agents of the ChiCom nation. So if you are a foreign person who acted on behalf of one of those entities in influencing the election . . .

      Only sanctions? Yes. But if you suddenly find your accounts blocked and the tentacles of the US sanctions working through the entire financial system to make your life miserable, it’s going to have a sphincter-tightening effect upon you like you cannot believe. And you just might want to cooperate to get those sanctions lifted. And that’s where this EO has the potential to be very valuable.

      I’m not one of those claiming that Trump has been playing 7 dimensional chess and saw this coming and let it play out. But, for whatever reason the EP was adopted (I assumed at the time it was to troll people like Adam Shifty) it gives Trump some substantial leverage that he can use in this battle.

      Andy S.

    4. This EO has been presented as a sort of magic bullet that will win the election battle for Trump. My point has been that it's essentially irrelevant to that battle--unless, of course, there really is some smoking gun evidence that the whole thing was coordinated by a foreign power. Or agents of a foreign power. For investigative reasons I believe if such a smoking gun existed we'd already have been made aware of it. In the meantime, people need to focus on the election fraud at hand.

  5. "The mere fact of US persons or corporations being headquartered overseas does not ipso facto make them Foreign Powers."

    Just have the State Dept. erroneously assert that the Americans in question are "from Europe". Et voilá, instant foreigners! Because that's "how the world works," right? At least it does in Washington World, which is apparently some sort of amusement park for boneheaded bureaucrats.

    Yes, that actually happened. Facts matter.