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—

(1) 

a foreign government or any component thereof, whether or not recognized by the United States;

(2) 

a faction of a foreign nation or nations, not substantially composed of United States persons;

(3) 

an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;

(4) 

a group engaged in international terrorism or activities in preparation therefor;

(5) 

a foreign-based political organization, not substantially composed of United States persons;

(6) 

an entity that is directed and controlled by a foreign government or governments; or

(7) 

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.