Electoral Subversion is About a Lot More than FEC Violations

Jon
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President Trump’s instantly notorious interview with George Stephanopoulos in which he expressed openness to receiving foreign government assistance in the 2020 presidential election sparked a flurry of pushback and denunciations. The Chair of the FEC released a statement rebuking the President. Various lawyers noted laws prohibiting candidates from accepting things of value from foreign nationals. But many of the criticisms themselves illustrate more than anything the impact almost three years of Republican gaslighting, goal post moving and obfuscation has had on the public debate in this country. The fact that accepting assistance from a foreign government – which President Trump wants to establish as the new norm – might technically be construed as a campaign finance violation is close to the least relevant thing about what happened in the 2016 election. This should also remind us that most the scandal of the 2016 election and what amounts to the permanent scandal of the Trump presidency involves wrongdoing and misrule that is simply not captured by our statutory law. They are attacks on the nature of a civic republican government and principles embedded throughout the federal constitution.

At its porous margins citizenship can be a matter of paper as much as substance. One day you’re a Chinese or Israeli living in the US on a green card. The next you’re a US citizen with all the rights to vote of every other American citizen. The difference is a critical one on which all manner of distinctions are judged. But in substance it may not seem a huge difference if you contributed $500 to a candidate before or after you got your green card. It’s hypotheticals like these which are used to flatten the import of these Trump style bad acts into what can seem like technicalities or differences of degree rather differences of kind.

When foreign governments or intelligence agencies seek to involve themselves in a US election they want something in return. It’s by definition not a contribution or altruism. Precisely what a foreign state is trying to accomplish by involving itself in a US election is not always clear – are they trying to suborn and compromise a candidate, force a candidate to incur a debt, force a change in US policy favorable to that government. Our whole global order and the foundations of the American republic are based on the distinct and separate nature of states. Adversary states especially – but not only adversary states – are by definition seeking to advance their interests at our expense or at least without regard to American national interests. With an adversary state it is almost by definition a zero sum situation, especially when arranged by stealth. Again, arguing this down to the simple exchange of money, which is of course fungible and information which isn’t bad or good in itself is a form of mendacious argument meant to flatten the treachery and substance out of the exchange.

The point isn’t that a chunk of money or some secret bit of information could have come from some American citizen as easily as it could have come from Russian intelligence or the government of Pakistan. The point is that foreign governments have separate interests and want things in return. We might entertain hypotheticals which argue that the whole concept of the nation state is a fiction. That’s fine for a course in political science. But the reality of that distinction is what our entire governmental system is based on.

Just as importantly, foreign interventions aren’t just threats to national security and interest. They are a threat to our republican form of government in which democratic legitimacy is based on majority decisions taken, with some degree of transparency, by citizens. The authors of the US Constitution were obsessed with this particular issue – the threat of foreign subversion and intrigue. In Federalist No. 22, Alexander Hamilton wrote: “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.” They thought republics were the best form of government but uniquely subject to subversion.

This is actually one of the relatively few instances on which the framers of the constitution wrote in specific prohibitions as opposed to a general system of powers and rules to adjudicate politics and governance.

The now archaic-seeming prohibition on naturalized citizens becoming Presidents is one example. The ban on officeholders receiving “emoluments” (really anything of value) from foreign powers is another. The constitution prohibits the United States from creating its own titled nobility and just as importantly prohibits US citizens with any role in government from accepting titles, offices or honors “from any King, Prince or foreign State.”

They were obsessed with it because it cuts at the core of Republican government itself and is the ultimate republican bad act. They knew of which they spoke. Ironically, Hamilton, Madison and Jefferson would each rub up against though ultimately not cross over these lines in the 1790s in George Washington’s second term as the French Revolution roiled American domestic politics.

Another wisdom embedded in the constitution is the extremely narrow definition of treason. This was critical given how much monarchies and all past governments had been in the habit judging simple opposition to the government as treason. The constitution says that “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It then goes on to establish an explicit standard of proof which seems designed to be in most instances almost impossible to meet: “Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

Few hypothetical examples of election interference or even criminal conspiracy could meet this standard and we shouldn’t be trying to jam them into these definitions. But working with a foreign government, especially a hostile foreign government to advantage in a US presidential election is the highest form of national betrayal in a republican constitutional system, one the creators of our government saw clearly and one which required no real explanation or argument until the years of damage, obfuscation and normalizing the indefensible Donald Trump has brought in his wake in the last four years.

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