Hacking and the Politics of Moral Outrage

The_ScreamWith 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

119 thoughts on “Hacking and the Politics of Moral Outrage”

  1. Violating a EULA agreement with Google (logging in fraudulently to another person’s account) is probably a federal crime of wire fraud. It’s an example of how lax the USG has become in prosecuting its laws. But, if we are going to look into internet account login impostering, we should start with FBI, NSA and Defense Intelligence, for whom the is no EULA or foreign law that cannot be violated. As with so much corruption in the world today, the place to begin is #1 — an honest self-assessment of official hacking committed in the name of the US people. We’ll never understand the context for the Russian hacking program until we are aware of the frauds being carried out by our cyber agencies.

  2. If there are people here who are all good with mass surveillance of US citizens through their phones, TV and even cars, then please don’t read this information. It will be useless to you.

    For people who believe it is wrong for the CIA to engage in mass surveillance and have remote control over all your electronic devices including your newer car, please read. This is what a police state looks like:


  3. Yes, the president can be hacked by the CIA, even through his twitter account. Everyone can be hacked by them. Find the documentation at wkileaks.org

    “Year Zero” introduces the scope and direction of the CIA’s global covert hacking program, its malware arsenal and dozens of “zero day” weaponized exploits against a wide range of U.S. and European company products, include Apple’s iPhone, Google’s Android and Microsoft’s Windows and even Samsung TVs, which are turned into covert microphones.”


  4. @Olly, March 6, 2017 at 8:26 pm

    “There is a lot of fear-mongering in that article.” [https://www.lewrockwell.com/2017/03/paul-craig-roberts/return-armageddon/]

    Rather than as fear-mongering, I see Roberts’ essay as a stark warning about the machinations of the military-industrial-intelligence complex and its propaganda outlets, the corporate media, to intimidate Trump into not interfering with the highly lucrative New Cold War with Russia.

    In his essay, Roberts cites investigative journalist Gareth Porter’s own essay on the brazen interference in US domestic politics of US intelligence agencies, with the endgame of removing Trump as President, through either impeachment or by invoking the 25th Amendment, if he were to refuse to acquiesce in the continuation of the New Cold War, regardless of the risk of its escalating into a nuclear WW III:

    “Opponents of the Trump administration have generally accepted as fact the common theme across mainstream media that aides to Donald Trump were involved in some kind of illicit communications with the Russian government that has compromised the independence of the administration from Russian influence.

    “But close analysis of the entire series of leaks reveals something else that is equally sinister in its implications: an unprecedented campaign by Obama administration intelligence officials, relying on innuendo rather than evidence, to exert pressure on Trump to abandon any idea of ending the New Cold War and to boost the campaign to impeach Trump.

    “A brazen and unprecedented intervention in domestic U.S. politics by the intelligence community established the basic premise of the cascade of leaks about alleged Trump aides’ shady dealing with Russia. Led by CIA Director John Brennan, the CIA, FBI and NSA issued a 25-page assessment on Jan. 6 asserting for the first time that Russia had sought to help Trump win the election.

    “Brennan had circulated a CIA memo concluding that Russia had favored Trump and had told CIA staff that he had met separately with Director of National Intelligence James Clapper and FBI Director James Comey and that they had agreed on the ‘scope, nature and intent of Russian interference in our presidential election.’

    “In the end, however, Clapper refused to associate himself with the document and the NSA, which agreed to do so, was only willing to express “moderate confidence” in the judgment that the Kremlin had sought to help Trump in the election. In intelligence community parlance, that meant that the NSA considered the idea the Kremlin was working to elect Trump was merely plausible, not actually supported by reliable evidence.

    “In fact, the intelligence community had not even obtained evidence that Russia was behind the publication by Wikileaks of the e-mails Democratic National Committee, much less that it had done so with the intention of electing Trump. [Emphasis added] Clapper had testified before Congress in mid-November and again in December that the intelligence community did not know who had provided the e-mails to WikiLeaks and when they were provided.”

    And, Porter adds, “Many in Washington’s political elite celebrated the fall of Flynn as a turning point in the struggle to maintain the existing policy orientation toward Russia. The day after Flynn was fired the Post’s national political correspondent, James Hohmann, wrote that the Flynn ‘imbroglio’ would now make it ‘politically untenable for Trump to scale back sanctions to Moscow, because the ‘political blowback from hawkish Republicans in Congress would be too intense….’

    “But the ultimate target of the campaign was Trump himself. As neoconservative journalist Eli Lake put it, ‘Flynn is only the appetizer. Trump is the entree.’ “ [Emphasis added]


    1. Crooked deals – here, there, everywhere………….Trump wants all of this to remain hidden.

  5. @ desperatelyseekingsusan, March 6, 2017 at 8:04 pm

    ” ‘Well, Paul Craig Roberts has taken his measure of the man as President, and it’s not a happy portrait:’

    “Paul Craig Roberts’ more memorable interventions in public discourse have included promoting a farrago of 9/11 truther drivel. We can all be sure he’ll be absolutely perspicacious this time.”

    Speaking of drivel, your observation may carry some weight with 9/11 Dupes, but hardly with those who have examined the available evidence and found the 9/11 Commission Report a farrago of omissions and distortions. Dr. David Ray Griffin, among hundreds of other patriotic professionals, has pointed them out in great detail in his lectures and books on the subject:

    1. Hey Autumn,

      A good broadcast (as always) but I confess, I think we have a case of two faux news players here. Trump has the authority to declassify any intellegence briefs including any aimed at Trump (Trump Tower) while he was a candidate. Trump is not declassifying anything as proof that Obama or DOJ had him under wire tap so one must assume Trump has his own agenda here.

      I suspect we have Trump, frustrated at Obama and the DNC (including HIllary)’s constant fake news loops on the Russian Hacking and the supposed too close relations between camp Trump and the anti-Christ, Putin. No matter how fake, these fabrications are having a real effect. Even Turley swallows it (though that may be mostly diplomatic). So, Trump wants to make his own fake news meme to spread around as an antidote to those of Obama/DNC/sour-puss Hillary.

  6. 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.

    Is there any evidence to support this it was committed by Russians claim other than the tired, weary and worn innuendos bandied about by the media?

    The highlighted text below is from an open letter to President Barack Obama titled Veteran U.S. Intelligence Officials Call for Russian ‘Hacking’ Proof that was excerpted from the website Washingtonsblog.com:

    We find the New York Times- and Washington Post-led media Blitz against Trump and Putin truly extraordinary, despite our long experience with intelligence/media related issues. On Jan. 6, the day after your top intelligence officials published what we found to be an embarrassingly shoddy report purporting to prove Russian hacking in support of Trump’s candidacy, the Times banner headline across all six columns on page 1 read: “PUTIN LED SCHEME TO AID TRUMP, REPORT SAYS.”

    The lead article began: “President Vladimir V. Putin of Russia directed a vast cyberattack aimed at denying Hillary Clinton the presidency and installing Donald J. Trump in the Oval Office, the nation’s top intelligence agencies said in an extraordinary report they delivered on Friday to Mr. Trump.” Eschewing all subtlety, the Times added that the revelations in “this damning report … undermined the legitimacy” of the President-elect, and “made the case that Mr. Trump was the favored candidate of Mr. Putin.”

    On page A10, however, Times investigative reporter Scott Shane pointed out: “What is missing from the public report is what many Americans most eagerly anticipated: hard evidence to back up the agencies’ claims that the Russian government engineered the election attack. That is a significant omission.”

    Shane continued, “Instead, the message from the agencies essentially amounts to ‘trust us.’ There is no discussion of the forensics used to recognize the handiwork of known hacking groups, no mention of intercepted communications between the Kremlin and the hackers, no hint of spies reporting from inside Moscow’s propaganda machinery.”

    Shane added that the intelligence report “offers an obvious reason for leaving out the details, declaring that including ‘the precise bases for its assessments’ would ‘reveal sensitive sources and methods and imperil the ability to collect critical foreign intelligence in the future.’”

    Shane added a quote from former National Security Agency lawyer Susan Hennessey: “The unclassified report is underwhelming at best. There is essentially no new information for those who have been paying attention.” Ms. Hennessey served as an attorney in NSA’s Office of General Counsel and is now a Brookings Fellow in National Security Law.

    As you will have gathered by now, we strongly suspect that the evidence your intelligence chiefs have of a joint Russian-hacking-WikiLeaks-publishing operation is no better than the “intelligence” evidence in 2002-2003 – expressed then with comparable flat-fact “certitude” – of the existence of weapons of mass destruction in Iraq.

    For the Steering Group, Veteran Intelligence Professionals for Sanity (VIPS)

    William Binney, former Technical Director, World Geopolitical & Military Analysis, NSA; co-founder, SIGINT Automation Research Center (ret.)

    Marshall Carter-Tripp, Foreign Service Officer (ret) and former Office Director in the State Department Bureau of Intelligence and Research

    Thomas Drake, former Senior Executive, NSA


  7. @Olly, March 6, 2017 at 1:12 pm
    “I ask this because he must be measured as President of the United States and not as the owner of the Trump Organization.”

    Well, Paul Craig Roberts has taken his measure of the man as President, and it’s not a happy portrait:

    “Trump’s presidency is effectively over. Even if he is permitted to remain in office, he will be a figurehead for the Deep State’s presidency. President Trump has already fallen into line with the military/security complex.

    “He has said Russia has to return Crimea to Ukraine, whereas in fact, Crimea returned itself to Russia. He has rejected a new strategic arms limitations treaty (START) with Russia, stating that he wants supremacy in nuclear armaments, not equality. Obama’s one trillion dollar upgrade of the US nuclear arsenal is likely to get a boost from Trump. [He has already called for a $56 billion increase in the already obscenely bloated Pentagon budget from which in the past trillions have disappeared and are still unaccounted for]

    “After one month in office the goal has changed from reduced tensions with Russia to greater tensions. Greater tensions might soon be upon us. There are plans to occupy part of Syria with US troops in order to prevent Syria with Russia’s help from reuniting the country. Part of Syria is to go to Turkey, part to the Kurds, and Washington will keep a chunk. This way Washington can keep the turmoil going forever. The Russians brought this problem on themselves.

    “Ever hopeful for Washington’s cooperation against ISIS, Russia dallied in cleaning out ISIS. The prospect that Trump would work with Russia as part of better relations assumed that Trump would actually be in charge, which has turned out to be delusional.”

    1. Well, Paul Craig Roberts has taken his measure of the man as President, and it’s not a happy portrait:

      Paul Craig Roberts’ more memorable interventions in public discourse have included promoting a farrago of 9/11 truther drivel. We can all be sure he’ll be absolutely perspicacious this time.

    2. Ken,
      There is a lot of fear-mongering in that article. We’ve become accustomed over the last 8 years to a President that negotiates from a position of weakness. Now we have a President that negotiates in a completely different way. So far he has demonstrated a worldview that is a polar opposite of his predecessor. I seriously doubt what Trump “said” he wants is what he believes he will ultimately get. He’s proven to be a deal-maker and his skillset is the process of negotiation. I find it astounding that he still has people underestimating his strategic thinking. After all, everyone KNEW he would fail in the primaries, fail to get the nomination and be blown out on November 8th. And on March 6th he’s still the President of the United States and he will be tomorrow. Stay tuned.

  8. Let me tell you this: some people work & are paid a salary, some work & are paid a commission or tips, some work for a charity & are paid a salary along with the perks associated with the operation. Thus we have people being paid via different methods under our tax code: What would I learn from a person taxes unless it would show all like-kind perks & their value ?

  9. Has anybody even thought for one second that Trump and his cult of believers are going to be in butterfly nets in less of a year. Trump is a con-man pure and simple.He should resign soon and write his book and have his TV show and tell the world he was by far the greatest President of all time and he just was so above the rest of us that we mere mortals just could not understand his wisdom. The cult will buy his books and pay to see his TV network and he could sit back and have protection and pay from the suckers of the good ole USA. This message was brought to you from the future cult of President Pence.

    1. Apparently at least one person has…you. Would it be any more ridiculous for Trump to proclaim his Presidency as the greatest “of all time” 1.5 months into it than for you and your cult to proclaim it to be a disaster? What evidence of a disaster do you have that President Trump created? $11 trillion in additional debt? Spying on US Citizens? Massive racial divide? Loss of the middle class? Porous borders? Multiple homeland terror attacks? IRS targeting of conservative groups?

      Trump may be a conman but your cult would seem to be the mark. After all, if none of what went on the last 8 years activated your cult’s corrupt-o-meter then you and your cult need to be re-calibrated.

  10. To Professor Turley’s point that the releases of emails were one-sided (impacting the Dems), it seems like it was only the Democrats who were surreptitiously organized to bestow the nomination on Clinton. The Republican establishment was maneuvering right out in the open to nominate anyone but Trump. The Republican establishment then lost, right out in the open. The Democrat establishment won, behind the curtain, but lost the Presidency.

    It’s clear that the establishment/leaders of both parties have been out of touch with citizens’ priorities for some time. To their credit, the Republicans are trying to steer their party in a way that recognizes that fact. The Democrats are continuing to fight the supermajority of voters. And by supermajority of voters, I’m talking about everyone who voted for Trump added to those who voted for Bernie (or others) in the primaries.

    1. RE: Dems more impacted ……………………. The Republicans spent time, effort, and money securing their data bases.

  11. Nowhere in our constitution does it state the qualifications for public office require conformity to well-established norms created by the political class. Those outside the political class and that would include an overwhelming percentage of Americans have been conditioned to believe there is but one way this political theater is to be managed and that is defined by the political class themselves. If an actor in this theater goes rogue and pulls back the curtain to expose what is really going on behind the scenes, the patrons (citizens) are left in shock. Are they supposed to believe what their eyes clearly see? Or would it be easier to close their eyes and be told what the “truth” really is? Blue pill please.

    I understand how difficult it is to accept Donald Trump. He’s is clearly outside the norm the political class has created for us. The political norm is like a circus. It has its 3 rings and the show must go on. In this norm, the risk for politicians is an illusion as they have a net to protect them. Donald Trump ran on the idea the entire circus is corrupt. The American people were outraged to discover all is not well back stage. They elected him to the circus and now President Trump is walking the high-wire without a net. The problem he has created for the political class is the people don’t like the circus any longer. The circus may not provide Trump the net but he doesn’t need it, he has the American people.

      1. And you’ll discover what? Something about Trump that will confirm or deny your bias? Would a clean accounting of Trump’s business dealings change your opinion of him? Of course not. This is not a guy of the circus. He doesn’t fit the paradigm of President everyone has been conditioned to believe is normal. Unless you’re prepared to question the circus itself then there is nothing President Trump needs to show you that will make any difference.

          1. You have no idea what I “seem” to want. I have no doubt there is an Amazon jungle’s worth of shade in Trump’s business dealings. This and other reasons are why I never supported him for President. The same is to be said for Clinton. The major difference between the two is only Clinton proved she had maintained those practices while in service of this country; it was questionable what Trump would do should he be elected. For all your obsession in discovering what Trump has done in his private affairs, have you an opinion about his fidelity to his campaign promises and performance as President? I ask this because he must be measured as President of the United States and not as the owner of the Trump Organization.

      2. “Trump needs to pull back his own curtain. Release the taxes”

        1. Have you gone through the taxes of other Presidential candidates?
        2,, Would you be able to understand the tax returns? Trump’s taxes are complex. The IRS has not completed the audit and one has to think their auditors have more knowledge on the subjject than the average bear.

  12. 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.
    Influencing the governments of your rivals and your friends is the essence of statecraft. It’s like the Dems just discovered this truth that harkens back to the Romans.

    “Great empires are not maintained by timidity.”
    ― Tacitus

  13. What is the “crime”? It is Prof. Turley’s apparently deliberate failure to focus on the fact that, in light of Trump’s conduct while in office- including Trump’s accusations that President Obama wire tapped Trump, Trump has confirmed that he is unfit to be President.

    It doesn’t matter whether you agree with all of Trump’s policy views or you agree with none of his policy views.

    It doesn’t matter what the Russians did or didn’t do.

    It doesn’t matter what Hillary did or didn’t do.

    It doesn’t matter what the vote totals were.

    It doesn’t matter how big the inaugural crowds were.

    Trump, as the result of his behavior, is personally damaging the United States at home and abroad. He will continue to do so, and he as long as he remains President while continuing his lifelong behavioral patterns. And he will continue to create a heightened risk of a conventional and/or nuclear war as long as he remains President.

    Prof. Turley please wake up and stop your currying favor with Trump.

    1. Trump has confirmed that he is unfit to be President.

      If you snoozed through the Lois Lerner episode, you’ve demonstrated you’re unfit to be a citizen.

    2. Oliver:
      Still waiting for the specific crime to be investigated rather than your Chicken Little opinions. Oh, the sky is falling, it’s falling because I say it is!

  14. I just wish the naysayers would grow up, suck it up and let the man do what he promised. We’ve got a very different kind of leader and I, for one, would like to see him be successful on those promises. He needs time to implement these things without so many distractions.

    1. There’s nothing wrong with conventional opposition. The problem we have in this country is that we have no authentic referees anymore and the opposition cannot open its mouth without lying (or abusing public agencies, when they have the opportunity).

      As is, the useless Senate majority leader is a much more severe impediment than the opposition to accomplishing much of anything.

      1. I hope you are wrong about that, DSS. As a baby boomer, I still have faith in America and wish the loud dissection would stop. I do not remember this type of opposition since the Vietnam war. I did not agree with that (hubby was a medic) and I don’t agree with this. It is our right to say/ speak what we think, and I wholeheartedly support that. I do not remember people ever acting the way protesters do today. And frankly, I find it scary.

        1. If you’re a Boomer of median age, you’re about 68 years old. You’ve got lots of anxiety-provoking things on your plate. No need to be investing too much in day-to-day controversies ginned up by the media.

            1. You’re not indifferent to these controversies, and that’s perfectly obvious.

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