Russian Espionage and Interference in 2016 Election Is Bigger Constitutional Crisis Than Bush v. Gore

With Electoral College vote looming, Republicans put party ahead of country.

Photo Credit: twitter.com/transition2017

Donald Trump’s march from Election Night to Inauguration Day feels like the ticking of a doomsday clock, with new drama surfacing daily that is deepening the alarm while not derailing the coming storm.

Russian interference in the election is the top example, prompting Hillary Clinton campaign chair John Podesta to say Monday that the campaign is supporting an effort by 10 bipartisan Electoral College members who want an intelligence agency briefing on foreign intervention. Their request comes as states face a Tuesday deadline to finalize their vote count results before next week’s Electoral College vote, which Jill Stein’s recount did not disrupt even as it exposed new anti-democratic facets of our elections.

The reason these anti-Trump electors and the Clinton camp want the intelligence briefing is because Russia’s involvement has been ominously reframed. On Friday, the Obama administration ordered a new intelligence agency assessment of Russia's actions. The Washington Post said a secret CIA report found Russia’s goals went beyond sowing chaos and were intended specifically to hurt Clinton and help Trump. A day later, the New York Times said the Russians hacked Republican National Committee emails as well, but didn’t release them, yet more evidence of a hostile foreign power taking sides.

The rebellious Electoral College members clearly see themselves as a last line of defense against tyrants and foreign meddlers that Alexander Hamilton warned about in Federalist Paper #68, writing “a core purpose of the Electoral College was to prevent a ‘desire in foreign powers to gain an improper ascendant in our councils.’”

Their supporters in Congress agree, with Rep Jim Himes, D-CT, and a House Intelligence Committee member, saying, “This man is not only unqualified to be president, he’s a danger to the republic.”

“I do think the Electoral College should choose someone other than Donald Trump to be president. That will lead to a fascinating legal issue,” he continued. “But I would rather have a legal problem—a constitutional legal problem—than to find out the White House was now the Kremlin’s chief ally.”

Realistically, it’s very unlikely anything will derail the Electoral College from meeting December 19 and making Trump the next president. (If that were the case, the election would be decided in the GOP-majority House of Representatives.) In the day-to-day news between now and that date, there will be plenty of sniping to distract from the constitutional crisis that Russian espionage and meddling presents.

One can persuasively argue that Russian actions reinforce the conclusion that Trump’s presidency is illegitimate. (Other factors include Clinton’s 2.85 million popular vote lead, the GOP’s litany of voter suppression tactics and refusal to verify the vote.) Russian interference is worse than the Supreme Court’s ruling stopping Florida’s recount and awarding the presidency to George W. Bush in 2000, because that was a domestically inflicted constitutional crisis.  

Yet Again, Party or Country First?

Conservatives who normally revere founding constitutional doctrine, from the editorial writers at the Wall Street Journal to the National Review, have cast that moral compass aside. Not only have they predictably piled on Democrats as crybabies and sore losers, but they’ve also, like Trump, attacked the CIA for its “secret” assessment that seems obvious to anybody watching the campaign, including Trump himself, urging Russia last July to hack and uncover more Clinton emails.

They seem to be taking it for granted that it is now a normal part of covering campaigns to repeat sensational leaks, not caring if they came from espionage by adversarial foreign governments. Imagine, for a moment, if the shoe were on the other foot. The GOP and the far right would be screaming about the traitorous and treasonous Democrats.

Some writers, like New York magazine’s Jonathan Chait, have raised the appropriate and unnerving question of why Obama or the executive branch didn't do more to force the Russians to back off, instead of letting them taunt slices of the electorate (like Sanders supporters distrustful of Clinton) in a tight race where a few points mattered. But beyond that question, Chait notes that the Post’s account of Obama’s effort to get bipartisan support for pushback—by convening lawmakers to hear the CIA’s secret report—was derailed by Senate Majority Leader Mitch McConnell, who did what he does best: Put party before country.

“Perhaps the most amazing revelation in the Post’s report is, ‘Some of the Republicans in the briefing also seemed opposed to the idea of going public with such explosive allegations in the final stages of an election,’” Chait wrote. “Almost immediately afterward, Republicans in Congress trumpeted explosive (but ultimately empty) allegations from a different agency [the FBI on Clinton’s emails]. Of the many causes of the election outcome, one was simply that Trump’s supporters in government were willing to put the system at risk in order to win, and Clinton’s supporters were not.”

Russian spying, stealing political secrets, leaking them into a compliant media, and putting its thumb on the scale to tip the balance toward a candidate whose views seem destined to hurt American interests and help Russian interests all pose a real constitutional crisis. It is a crisis because little can be done to stop this juggernaut—another failure of our system of supposed checks and balances.

In the near term, there have been calls by Robert Reich for Electoral College members who have doubts about Trump to vote with their conscience. There are protests being planned for statehouses across America. Russia’s role in Donald Trump’s election gives the tens of millions who opposed him new reasons to feel aggrieved and conclude his presidency is illegitimate. In addition, it underscores that a foreign power intervened and aided Trump's election, subverting a core pillar of America’s system of elections.

Meanwhile, Republicans pretend there is little to worry about, because winning justifies the means. It matters little that on Monday, McConnell agreed to a Senate inquiry into Russian interference. Republicans have a lock on Washington and can shut down that process at will. That is why the final weeks of Obama’s presidency feel like the ticking of a doomsday clock.  

Steven Rosenfeld covers national political issues for AlterNet, including America's democracy and voting rights. He is the author of several books on elections and the co-author of Who Controls Our Schools: How Billionaire-Sponsored Privatization Is Destroying Democracy and the Charter School Industry (AlterNet eBook, 2016).

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