Russian Hacking Scandal & Investigatory Options

by Katy J. Harriger, author of The Special Prosecutor in American Politics

As calls increase for independent investigation of the Russian hacking allegations, it is worth taking the time to look back at our modern American experience with such investigations. That experience tells us that it is important to think about the trade-offs involved in moving outside of the normal governmental process to gain independent investigation. In this post I’ll explore those trade-offs, based on my study of the use of special prosecutors in the 20th century.

While the use of special prosecutors is not unusual in state and local politics, until the Watergate scandal of the 1970’s they were a little used mechanism in national politics. Special prosecutors are used when there is a need for reassuring the public that allegations of wrongdoing by public officials are being investigated, and if necessary, prosecuted, without political bias. When calls for special prosecutors increase, it suggests a decline in elite and/or public confidence that regularly elected and appointed public officials can be trusted to impartially investigate allegations against high level officials, who may be either their superiors or people with whom they have close political or professional ties.

Before Watergate, special prosecutors had been used in national politics only during the infamous Tea Pot Dome Scandal of the 1920’s and during a less famous Tax Scandal during the Truman administration. After Watergate, however, because Congress passed the Ethics in Government Act of 1978, there were at least 20 special prosecutor investigations between the time the act was passed and when it was allowed to expire in 1998. Arguably, only two of them were comparable to the Watergate scandal in that they implicated the president himself in the wrongdoing: the Iran-Contra scandal of Ronald Reagan’s second term and the Whitewater/Monica Lewinsky scandal during Bill Clinton’s second term. By the time Congress failed to renew the act both sides of the political aisle felt they had been unfairly harmed by the existence of the independent counsel provisions and decided the arrangement created more problems than it solved. Instead, the Department of Justice under Janet Reno promulgated a set of rules for determining when DOJ leadership should recuse itself from an investigation and under what circumstances they appoint an independent investigator (called special counsel). The one such appointment that we know about was for the investigation and prosecution of then V.P. Cheney’s chief of staff Scooter Libby, for his role in leaking the name of CIA agent Valerie Plame.

The election of 2016 brought the spotlight back to the special prosecutor. During the election Donald Trump promised that, if elected, he would appoint a special prosecutor to investigate all the criminal activity he had accused Clinton of having committed. Indeed, he, his surrogates, and his supporters pre-judged the outcome of that investigation with the campaign chant “Lock her up!” Since Trump’s election, a new special prosecutor demand has arisen, this time from his critics concerned about troubling information about Russia’s attempt to use hacked material to sway the election against Clinton and Trump’s advisors’ meetings with Russian officials during this time.

The arguments for pressing for the appointment of a special prosecutor removed from direct control by politically interested officials are several and not to be easily dismissed:

  • The allegations involve multiple advisors and officials with direct connection to the President
  • The Attorney General, Jeff Sessions, is a close associate and seen as a partisan for the President
  • Public opinion polls show that a majority of those polled (made up of a very large majority of Democrats, a slight majority of Independents, and a quarter of Republicans) think some kind of investigation is needed either by Congress or a special prosecutor. This suggests a high level of skepticism about whether regular attorneys in the Department of Justice are sufficiently disinterested in the outcome of such an investigation.

But there are also arguments or questions that encourage caution before concluding that a special prosecutor is necessary in order to get to the bottom of the Russian hacking scandal:

  • Is there sufficient evidence that a crime was committed that justifies a criminal investigation with a prosecutor, a grand jury, and the possibility of a criminal trial? The burden of proof for criminal charges is high – responsible prosecutors always ask whether a jury is likely to convict on evidence that shows that the crime occurred “beyond a reasonable doubt”.   Refusal to prosecute doesn’t mean there is no reason to believe wrongdoing occurred. It just means we can’t meet the high standard to proof required of the prosecutor to gain conviction. The tradeoff involved in having a prosecutor in a situation like this is that inability to convict for violation of a criminal law can be interpreted as lack of evidence of wrongdoing, abuse of the public trust, or unethical conduct. These are not legal equivalents. Just because one is not a “criminal” does not mean one meets the ethical standards we desire for our public officials.
  • What is most important: public understanding of what happened during the election of 2016 or prosecution of the associates of the president who may have been complicit in the foreign attempt to influence the election? This is a judgment call but merits careful consideration. The tradeoff is between the greater public exposure to the evidence of what happened that can be generated through a congressional committee hearing or a special commission and the ability to prosecute specific criminal wrongdoing. It may well be that there is insufficient evidence to successfully prosecute anyone for violation of criminal laws against foreign attempts to influence elections, but that does not mean that there is insufficient evidence that there were inappropriate and unethical collaborations between Trump advisors and the Russians. Congressional committees and independent commissions are more likely to produce this kind of information. Then the burden is on voters to decide in the next election whether or not the evidence merits rejection or return of the incumbent implicated by the evidence.
  • Why not have both? In Watergate there was a special congressional investigation and a special prosecutor. While there was sometimes tensions between the two entities, one could argue that it was the combination of the two that led to both the president’s resignation and the prosecution of key actors in the break-in and cover-up.   But there is a counter example that must also be remembered. In the Iran-Contra scandal the decision by Congress to grant immunity in exchange for testimony to key actors in the affair made it extremely difficult for the special prosecutor to pursue his case. In the end, the convictions he gained in the Oliver North and John Poindexter cases were overturned on appeal because he was unable to prove that the prosecution had been untainted by the immunized testimony. Other special prosecutors who have been brought into a case after congressional investigations have begun, even when testimony has not been immunized, have reported that their investigation was made more difficult by the public airing of witness testimony.

All of these considerations suggest that simultaneous congressional hearings/investigations and special prosecutor investigations are difficult to accomplish without undermining the actual ability to prosecute should crimes be revealed. Watergate suggests it may be the best way to go, but Iran-Contra suggests that it should not be done unless Congress is willing to forgo use of its authority to immunize witnesses who could be key to prosecutions. But choosing one path over the other should be done only with a full consideration of the tradeoffs. One route maximizes the democratic process, using the normal checks and balances of the system, with the payoff usually being maximum information for the citizen about what happened. It works best when members of Congress find the will to cooperate in a bipartisan way.  If one party calls all the shots and it’s the party of the president, there is little likelihood that some significant swath of the public will accept the outcome. The other route tends to maximize independence (also interpreted as non-partisanship) and requires the norms of the criminal justice process be followed. Those being investigated have the protections of due process and the high standard of “beyond a reasonable doubt” to protect them. If a prosecution happens, the public will get a full airing of the issues that relate to the criminal charges brought, but many aspects of the affair will be irrelevant in a criminal trial. If a special prosecutor decides not to indict, the public will have very little information on what happened and why because it is not the practice of prosecutors to provide detailed explanations for decisions not to prosecute.

Congress has begun its investigation and it will no doubt be watched closely by those suspicious of whether the party in power will follow the evidence that is harmful to the president and his associates. The Attorney General has recused himself and it remains to be seen how the Associate Attorney General will assess the situation and exercise his power to request a special counsel for a criminal investigation. Whether the public can be fully informed of the Russian interference with the election and there can be successful prosecution of those (if any) who broke criminal laws remains to be seen.

Stay tuned.

Katy J. Harriger is a Professor and Department Chair in the Department of Politics and International Affairs at Wake Forest University

 

The End of the Conservative Movement (Still)…

A few weeks ago we posted a new piece from Dr. George Hawley, author of Right-Wing Critics of American Conservatism, that dissected the possible effects of Donald Trump’s candidacy on the American conservative movement. Because his great piece is even more timely now, we are re-running it below…

By George Hawley, PhD

donald-trump-supporter-yells-sieg-heil-nazi-salute-at-las-vegas-rallyIn American politics, we are accustomed to thinking about people and groups in binary terms: liberal and conservative, left and right, and Republican and Democrat. Because the GOP has established itself as the conservative party, and the GOP has won many impressive victories in recent cycles (presidential elections being prominent exceptions), we might infer that there is large grassroots support for conservatism. At the very least, we should be able to describe the average Republican voter as a conservative. Such a description would be wrong. Observers make this mistake because they fail to understand that conservatism as a general sensibility is very different from American conservatism as an ideology and dogmatic collection of inflexible policy demands. Once we disaggregate these two phenomena, Trump’s success, and the conservative movement’s ineffectual efforts to stop Trump, make more sense.

As a general disposition, conservatism is a normal tendency. If we define conservatism as a fear of radical change, then all societies at all times have had a large proportion of conservatives. Indeed, we may even think of conservatism as the default position of most people. For decades, polls have shown that more Americans define themselves as conservatives than liberals. Republicans are especially likely to define themselves as conservatives.

Yet the major institutions of organized conservatism do not define conservatism as a disposition; to the leading journalists and intellectuals associated with the movement, conservatism requires devotion to the free market, support for traditional values, and commitment to an aggressive foreign policy abroad – the so-called three-legs of the conservative stool. These are the hallmarks of a “true conservative.”

Political scientists use different terms for these two types of ideologies. To understand the distribution of Americans across the ideological spectrum, we must understand that operational ideology is different from conceptual ideology – for the best recent examination of this issue, I recommend Ideology in America by Christopher Ellis and James Stimson. Americans, especially Republicans, tend to be symbolically conservative; they love the flag, consider themselves religious, and enjoy rhetoric about liberty and the Constitution. But when it comes to actual policy preferences, their operational ideology, Americans are, on average, pretty liberal.

Most Americans do not support upper-class tax cuts; they are not pro-life purists; they are not eager for more wars. In fact, this is not just true of Americans overall. Most Republican voters reject at least one important element of the conservative policy agenda. In terms of operational ideology, consistent conservatives are not just a minority of all Americans; they are a minority among Republicans.

To get a sense of just how little the Republican electorate supports the conservative policy agenda, we can examine polling data. Looking at the 2012 American National Election Survey, we see that almost 62 percent of Republicans would support new taxes on millionaires; only about 19 percent said they supported cutting the federal budget for education; fewer than ten percent supported cutting Social Security spending. Republicans are also, on average, rather moderate or even liberal on many social issues. Fewer than one in five Republicans said they wanted to prohibit abortion in all circumstances; a majority of Republicans supported legal recognition for same-sex couples. If we define a “true conservative” as a person who supports the conservative position on every policy issue, then such conservatives are a tiny percentage of the electorate.

Professional conservatives are faced with a frightening reality: the GOP has been successful in spite of its conservatism, not because of it. The Republican Party can successfully activate voters by appealing to their symbolic conservatism; but Republican leaders, conservative intellectuals, radio hosts, and talking heads have had little success in selling the operational conservative ideology to the public. Even Tea Party supporters, those ostensibly intractable devotees of supply-side economics, are divided on corporate and high-income tax cuts.

The weak hold that conservatism has on any segment of the electorate is not a new development. But Donald Trump has put the conservative movement’s weakness on very public display. Trump kept the GOP’s conservative symbolism (the flag, appeals to greatness and patriotism), added an implied element of ethnic grievance, and otherwise ignored conservative dogma. Conservative pundits are right that Trump is not a true conservative, and they are right to oppose him on ideological grounds. The National Review cover story denouncing Trump, the #NeverTrump movement, and Glenn Beck’s Trump-inspired tears were all justified.

Unjustified, however, was the belief that the conservative movement’s hostility to Trump mattered. The disconnect between the conservative movement’s influence on public policy and the public’s actual support for conservative policies is one of the dirty secrets of American politics. The real problem that Trump presents the conservative movement is not that he ensures a new Clinton Administration – though he may. Instead, Trump showed that conservatism is a spent force, easily abandoned by ordinary Republicans when they are provided with a right-wing alternative, even a flawed and erratic alternative.

When Trump won the GOP nomination, in spite of conservative objections, we saw definitive evidence that the organized conservative movement has little popular support. If he goes on to win in November, conservatism is finished. If Trump loses to Clinton, conservatives will try to wash their hands of the defeat. But much damage will have already been done.

In contrast to conventional wisdom, the United States is not a “center-right nation.” The American voting public may be to the right of the electorates in other advanced democracies, but it is certainly not conservative in the sense that William F. Buckley used the term. In fact, despite the claims by various talk-radio personalities, Republicans do not lose because they “betray conservative principles.” Those very principles have been a hindrance to greater electoral success. Trump has broken this illusion, and having demonstrated that there is no conservative consensus among GOP voters, we can expect others to follow his lead. Although the Republican Party will likely survive the 2016 election, its status as a uniformly conservative party will not. The end result of the Trump campaign will be an ideological vacuum on the right, one that will likely be filled by something very different from the mainstream conservative movement we have known for six decades.

The 2016 Election and the End of the Conservative Movement

photo courtesy of CNN
photo courtesy of CNN

Every Thursday from now until the election, we will feature a piece by a UPK author that deals with an aspect of American politics. Today, Dr. George Hawley, author of Right-Wing Critics of American Conservatism, dissects the possible effects of Donald Trump’s candidacy on the American conservative movement.

By George Hawley, PhD

In American politics, we are accustomed to thinking about people and groups in binary terms: liberal and conservative, left and right, and Republican and Democrat. Because the GOP has established itself as the conservative party, and the GOP has won many impressive victories in recent cycles (presidential elections being prominent exceptions), we might infer that there is large grassroots support for conservatism. At the very least, we should be able to describe the average Republican voter as a conservative. Such a description would be wrong. Observers make this mistake because they fail to understand that conservatism as a general sensibility is very different from American conservatism as an ideology and dogmatic collection of inflexible policy demands. Once we disaggregate these two phenomena, Trump’s success, and the conservative movement’s ineffectual efforts to stop Trump, make more sense.

As a general disposition, conservatism is a normal tendency. If we define conservatism as a fear of radical change, then all societies at all times have had a large proportion of conservatives. Indeed, we may even think of conservatism as the default position of most people. For decades, polls have shown that more Americans define themselves as conservatives than liberals. Republicans are especially likely to define themselves as conservatives.

Yet the major institutions of organized conservatism do not define conservatism as a disposition; to the leading journalists and intellectuals associated with the movement, conservatism requires devotion to the free market, support for traditional values, and commitment to an aggressive foreign policy abroad – the so-called three-legs of the conservative stool. These are the hallmarks of a “true conservative.”

Political scientists use different terms for these two types of ideologies. To understand the distribution of Americans across the ideological spectrum, we must understand that operational ideology is different from conceptual ideology – for the best recent examination of this issue, I recommend Ideology in America by Christopher Ellis and James Stimson. Americans, especially Republicans, tend to be symbolically conservative; they love the flag, consider themselves religious, and enjoy rhetoric about liberty and the Constitution. But when it comes to actual policy preferences, their operational ideology, Americans are, on average, pretty liberal.

Most Americans do not support upper-class tax cuts; they are not pro-life purists; they are not eager for more wars. In fact, this is not just true of Americans overall. Most Republican voters reject at least one important element of the conservative policy agenda. In terms of operational ideology, consistent conservatives are not just a minority of all Americans; they are a minority among Republicans.

To get a sense of just how little the Republican electorate supports the conservative policy agenda, we can examine polling data. Looking at the 2012 American National Election Survey, we see that almost 62 percent of Republicans would support new taxes on millionaires; only about 19 percent said they supported cutting the federal budget for education; fewer than ten percent supported cutting Social Security spending. Republicans are also, on average, rather moderate or even liberal on many social issues. Fewer than one in five Republicans said they wanted to prohibit abortion in all circumstances; a majority of Republicans supported legal recognition for same-sex couples. If we define a “true conservative” as a person who supports the conservative position on every policy issue, then such conservatives are a tiny percentage of the electorate.

Professional conservatives are faced with a frightening reality: the GOP has been successful in spite of its conservatism, not because of it. The Republican Party can successfully activate voters by appealing to their symbolic conservatism; but Republican leaders, conservative intellectuals, radio hosts, and talking heads have had little success in selling the operational conservative ideology to the public. Even Tea Party supporters, those ostensibly intractable devotees of supply-side economics, are divided on corporate and high-income tax cuts.

The weak hold that conservatism has on any segment of the electorate is not a new development. But Donald Trump has put the conservative movement’s weakness on very public display. Trump kept the GOP’s conservative symbolism (the flag, appeals to greatness and patriotism), added an implied element of ethnic grievance, and otherwise ignored conservative dogma. Conservative pundits are right that Trump is not a true conservative, and they are right to oppose him on ideological grounds. The National Review cover story denouncing Trump, the #NeverTrump movement, and Glenn Beck’s Trump-inspired tears were all justified.

Unjustified, however, was the belief that the conservative movement’s hostility to Trump mattered. The disconnect between the conservative movement’s influence on public policy and the public’s actual support for conservative policies is one of the dirty secrets of American politics. The real problem that Trump presents the conservative movement is not that he ensures a new Clinton Administration – though he may. Instead, Trump showed that conservatism is a spent force, easily abandoned by ordinary Republicans when they are provided with a right-wing alternative, even a flawed and erratic alternative.

When Trump won the GOP nomination, in spite of conservative objections, we saw definitive evidence that the organized conservative movement has little popular support. If he goes on to win in November, conservatism is finished. If Trump loses to Clinton, conservatives will try to wash their hands of the defeat. But much damage will have already been done.

In contrast to conventional wisdom, the United States is not a “center-right nation.” The American voting public may be to the right of the electorates in other advanced democracies, but it is certainly not conservative in the sense that William F. Buckley used the term. In fact, despite the claims by various talk-radio personalities, Republicans do not lose because they “betray conservative principles.” Those very principles have been a hindrance to greater electoral success. Trump has broken this illusion, and having demonstrated that there is no conservative consensus among GOP voters, we can expect others to follow his lead. Although the Republican Party will likely survive the 2016 election, its status as a uniformly conservative party will not. The end result of the Trump campaign will be an ideological vacuum on the right, one that will likely be filled by something very different from the mainstream conservative movement we have known for six decades.

Donald Trump, His Porn Pledge & the Historic Relevance

Nixon porn exploBy Douglas M. Charles

In the current presidential election cycle, we have witnessed unprecedented firsts from the nominee of the Republican Party, Donald Trump. We have seen this major-party presidential candidate say racist, misogynist, xenophobic and all manner of unorthodox or shocking things, like threatening to pull out of NATO and praising Vladimir Putin. We’ve also seen him borrow from the political past. He’s dredged up and embraced the previously discredited America First movement of the early 1940s, and he’s borrowed the Law and Order mantle of Richard Nixon in 1968. In early August Trump announced, to some excitement and drama, that he had signed the Children’s Internet Safety Presidential Pledge, a declaration crafted by an anti-pornography group claiming it seeks to protect children (they all do) and calling itself Enough Is Enough. This latest news item involving The Donald is also nothing new. Focusing on pornography or obscenity and appealing to people’s perceptions of decaying morality has been a standard GOP modus operandi since the late 1960s and Richard Nixon and ever after.

By the late 1960s, after various Supreme Court rulings liberalized federal anti-obscenity law, leading to a boom in the pornography industry, some Americans unsurprisingly became concerned. Around the same time (1970), in the realm of politics, political scientists concluded that Democrats won elections on economic issues while Republicans won by appealing to social issues. The GOP and Nixon fully embraced this idea and appealed to the great “silent majority” of Americans who worried about crime and respected decency, and Nixon squeaked out an electoral victory. Nixon continued to push social issues as president and focused on the pornography boom as something dangerous to Americans. A scientific presidential commission had even been formed by President Lyndon Johnson to study the issue, and the report was due out during Nixon’s first months in office.

The commission concluded that pornography did not contribute in any significant way to America’s various social problems of the time. Nixon would have nothing of it, and pushed the issue going so far as to arrange an all-out effort to discredit the commission’s report and advocating for the strengthening of federal anti-obscenity law. Nixon staffers even drafted an internal report on “The Pornography Explosion” and wanted to “activate all of the anti-obscenity groups” against the commission’s report. Nixon hoped to change the law (but the GOP had only minority numbers in Congress) or push for new obscenity prosecutions to develop a possible new Supreme Court ruling in its favor. Neither happened, but Nixon’s appointing of four conservative Supreme Court justices did slow, if not stop, the liberal trend in obscenity case rulings.

This trend then continued with certain GOP presidents. During the Reagan years pressure mounted again to do something about pornography, which resulted in Reagan’s attorney general, Ed Meese, releasing his own utterly un-scientific report concluding that pornography resulted in sexual violence and social problems. Even still during the 1980s fewer than 100 people were charged under federal anti-obscenity statues and only 71 convicted, a dismal record reflecting the continuing liberal evolution of Americans’ attitudes about the issue. Still, the issue was good for Republican base politics.

Reagan’s successor, George H. W. Bush, however, was not much interested in this aspect of social politics and neither, of course, was the Democrat Bill Clinton. But when George W. Bush ran for president in 2000 he resurrected it as an appeal to his right-wing evangelical base who wanted something done about obscenity and pornography. Bush won the election and even tried, but failed, to reinstate federal prosecutions of adult obscenity — unsurprisingly claiming an aim to protect children, an age-old proclamation —  which had previously faded away. When Barrack Obama assumed office in 2009 he ended the Bush effort (except for the focus on child pornography) as a drain on resources, but socially conservative Republicans tried to push back and demanded the Obama Justice Department do something about the alleged threat pornography posed to American society.

So Trump’s resurrecting the old ratty dog of pornography and its threat is really nothing new. It’s an effort to motivate the GOP’s socially conservative based in hopes to drum up votes. Could anything come of Trump’s anti-pornography pledge? Perhaps. But obscenity prosecutions have actually diminished steadily not just from the 1960s but throughout most of the 20th Century and into the next. It would be legally and socially very difficult for a President Trump to revive anti-pornography targeting and prosecutions; George W. Bush tried and failed miserably. American culture and social attitudes have just evolved too far to care much and see successful prosecutions. Then again, it would also depend on Trump winning the election, and that seems unlikely.

Douglas M. Charles is the author of UPK books, The FBI’s Obscene File: J. Edgar Hoover and the Bureau’s Crusade Against Smut & Hoover’s War on Gays: Exposing the FBI’s “Sex Deviates” Program.

Trump Faces Multiple Challenges in Selecting a Running Mate

9780700622023Joel K. Goldstein, author of The White House Vice Presidency: The Path to Significance, Mondale to Biden, analyzes the difficulties Trump must deal with in choosing a vice presidential candidate for the 2016 election campaign, in an article in Sabato’s Crystal Ball. Among those challenges is Trump’s lack of established relationships with Republicans from the four feeder groups: senator, high national executive branch official, governor, or member of the House of Representatives.

UPK Author Goldstein Analyzes Trump’s Choices for Vice President

9780700622023In USA Today Joel K. Goldstein, author of The White House Vice Presidency, a new book about how the office and role of VP has grown in importance in recent decades, reviews the numerous possible strategies and candidates for a Trump running mate: insider/outsider?, male/female?, current politician/former politician?, governor/senator?