With the chorus of calls for an “independent counsel” or “special prosecutor” to investigate the Russian hacking scandal, there has been one element that remains rather ambiguous: what is the specific crime to be investigated? Clearly there is the hacking but that crime is well-known and was committed by Russians who are unlikely to be subject to any real investigation. A special counsel, as opposed to a bipartisan commission, would require the articulation of a crime and the basis for the investigation. I am all in favor of independent investigations of this and other issues. However, if we are going to move beyond a special commission to special counsel we need to have more evidence and a notion of what we are investigating. That may come but we are not there yet. Below is my column in The Hill Newspaper on the subject — and the moral outrage over hacking.
In a time of virtually complete political polarization, there is one point upon which both parties appear to agree: moral outrage at the notion of Russian attempts to influence our election.
There are bipartisan demands for a special prosecutor and a full criminal investigation. However, while the outrage is most evident, the alleged crime is more difficult to discern. Before we order a massive independent investigation, it might be useful to examine both the basis for the self-evident outrage and the less-than-evident crime.
Moral outrage as political necessity
As our politicians went on the air to vent their disgust over Russians trying to influence our election, there was an interesting study published this month on moral outrage in an academic journal, Motivation and Emotion. The researchers found that moral outrage is rooted, not in altruism, but self-interest — often to affirm one’s own status and avoiding responsibilities or guilt.
“Individuals,” the study notes, “respond to reminders of their group’s moral culpability with feelings of outrage at third-party harm-doing.” The most astonishing aspect of this study is that it was not done entirely on Capitol Hill.
Many other countries can be forgiven if they are a bit confused by the expressions of outrage at the notion that Russia hacked emails or tried to influence our election. The United States objecting to hacking or influencing elections is akin to Bernie Sanders expressing disgust over accounting irregularities.
The United States has not only extensively engaged in surveillance in other countries but hacked the accounts of our closest allies, including the personal communications of German Chancellor Angela Merkel. Moreover, our country has a long history of direct interference in foreign elections from overthrowing governments to funding opposition movements.
One study found 81 different instances of the United States interfering with the elections of other countries between 1946 and 2000. We learned from the best; foreign interference in our country goes back to 1700s when France and Britain actively sought to influence our early governments.
Democratic leadership have a particular interest in expressing moral outrage over the election. The extent to which the election becomes an example of “third-party harm-doing,” the less attention will be drawn toward the party establishment which virtually anointed Hillary Clinton as their candidate despite polls showing that voters wanted someone outside of the establishment.
Not only did they select the single greatest establishment figure, but someone with record negative polling. “The Russians did it” is a much better narrative.
Of course, the Russians did not “hack the election.” No votes were fabricated. Indeed, there is no proof of emails being fabricated (despite the claims of some Democratic leaders like Donna Brazile at the time). The reason the public has not risen up in anger is that it is hard to get the public outraged over being shown the duplicitous and dishonest character of their leaders — even if the release was clearly one-sided against Democrats.
The public has every right to be outraged, but the outrage of our government officials would make Claude Rains blush.
Moral outrage in search of a crime
In the end, Russian attempts to influence our election should be a matter of national concern and investigation, though we would be in a far superior position if we acknowledged our own checkered past in such efforts. However, the call for a “Special Counsel” or “independent prosecutor” seems a bit premature since we do not have a clear crime other than the hacking itself (which has already been confirmed).
Clearly the Russians hacked DNC emails but we do not need a special counsel to confirm extensive hacking operations by a host of different countries. It is like complaining about the weather.
Dana Boente, the U.S. Attorney for the Eastern District of Virginia (and the acting deputy attorney general), could determine that an investigation by the Justice Department would still present a conflict of interest even after the recusal of Attorney General Jeff Sessions. The process for the appointment of special counsels through the courts lapsed in 1999. Thus, the current standard would involve Boente determining that the “criminal investigation of a person or matter is warranted” and must be done outside of the Department. But what is the crime under investigation?
The suggestions that Sessions committed perjury are far-fetched and unsupported.
Some have suggested violations of the Logan Act. However, that 1799 law concerns calls for the fine or imprisonment of private citizens who attempt to intervene in disputes or controversies between the United States and foreign governments. It has never been used to convict a United States citizen and does not appear material to these allegations. If there were monetary payments to influence the election, that would constitute a crime but there has yet to be evidence such crimes.
Finally, there do appear to have been criminal leaks during and after the election. However, those are insular, conventional matters for investigation by the Justice Department.
We generally do not start special counsel investigations absent a clear articulated and supportable criminal allegation. There are a host of obvious political or policy concerns that could be the subject of an independent investigation by a commission or joint legislative/executive effort. There are real concerns over conflicts in the current administration given the focus on the presidential election.
Yet, we are simply likely to confirm much of what we know: we were hacked. We are also likely to confront what many do not want to discuss: we have hacked others for years.
Until there is more evidence of a crime by United States citizens, there is little reason for a special counsel as opposed to the current investigations. We should investigate the hacking and efforts to influence our elections, certainly. But our politicians may want to leave the moral outrage and hypocrisy behind.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and teaches a course on the Constitution and the Supreme Court.
The Hill Newspaper March 3, 2017