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Bill Blum

Hacking the Election: We Should Call Trump’s Bluff for a Watergate-Style Inquiry

Bill Blum
Contributor
Bill Blum is a former judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam ("Prejudicial Error," "The Last Appeal" and "The Face of Justice") and is a…
Bill Blum

Evan Vucci / AP

At precisely 3:35 a.m. EST on March 4, President Donald John Trump—who has long boasted of his ability to function on just a few hours of sleep per night—launched perhaps the most incendiary tweet-storm of his tweet-filled career from within the gilt-encrusted confines of his Mar-a-Lago estate in Palm Beach, Fla.

“Terrible!” Trump typed on his trusty smartphone. “Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the [November election] victory. Nothing found. This is McCarthyism!”

After posting two more tweets claiming that Obama’s plan to wiretap him had been “turned down” by a court and that “a good lawyer” could “make a great case” against Obama—and roughly an hour before taking to Twitter again to blast Arnold Schwarzenegger for his ratings failures as the new host of “Celebrity Apprentice”—Trump compared Obama’s conduct to “Nixon/Watergate.”

The next day, Trump’s dutiful press secretary, Sean Spicer, followed up on his boss’ pre-dawn meltdown, sending out a news release to underscore the “very troubling” nature of Obama’s alleged malfeasance. Spicer urged Congress to expand its existing probes into Russian interference in the election to include the question of whether “executive branch investigative powers were abused in 2016.”

For once, I couldn’t agree more with President Trump. Although I suspect the last thing he, Spicer and the rest of the West Wing gang really want is a high-profile, Watergate-style investigation—note that Spicer concluded his March 5 announcement with the declaration that “[n]either the White House nor the president will comment further until such oversight is conducted”—this time we should support the chief executive, or, more accurately, call his bluff.

Anyone who needs a refresher course on Watergate should look at the Senate’s final report on the scandal, which was released in June 1974. The document still stands, by any measure, as one of the landmark texts of our constitutional history.

Comprising nearly 1,300 pages and another 26 volumes of testimony, the report reflects the extraordinarily broad mandate that the Select Committee on Presidential Campaign Activities, chaired by North Carolina’s Democratic Sen. Sam Ervin Jr., received to investigate the June 1972 break-in of the Democratic National Committee headquarters at the Watergate office building in Washington, D.C., and the subsequent cover-up by the Nixon White House.

Beyond the break-in and cover-up, the committee also was given the go-ahead to probe, in the words of the report, “all other illegal, improper, or unethical conduct occurring during the Presidential campaign of 1972.” For additional historical context, the committee went even further, exploring the Nixon administration’s political practices dating back to 1968, including the creation of the former president’s infamous “enemies list” and his obsession with opposition to the war in Vietnam.

The select committee held its first public hearing May 17, 1973, and maintained an exhausting schedule, convening as often as five times a week, with only two brief recesses until August of that year. Many hearings were televised, attracting record viewing audiences. When the final gavel came down, a total of 37 witnesses had been called, ending, as the report indicates, what was then the longest uninterrupted congressional hearing in the country’s history.

The Watergate hearings were instrumental in bringing about Nixon’s resignation. They were also a civics lesson writ large in a time of grave national disunity, as well as a collective search for political truth and an exercise in speaking truth to power.

We need an inquiry of the same magnitude today, convened by either a new select committee modeled after the one led by Ervin or an independent commission armed with full federal subpoena power.

At present, both the House and Senate Intelligence committees are investigating possible Russian influence in the elections. The committees also are looking into Trump’s charges against Obama, with Republican Sen. Lindsey Graham and Democratic Rep. Adam Schiff taking the initiative on that score. The House panel is slated to take testimony from FBI Director James Comey on March 20.

Neither chamber’s probe, however, is adequate. The existing committees are too restricted in their jurisdiction to get the job done and conduct too much of their most important work behind closed doors. The House panel also is overstaffed with Trump loyalists and lackeys.

In the meantime, questions surrounding the election continue to haunt the body politic, much as Watergate constituted, according to Nixon’s White House counsel John Dean, a “cancer on the presidency.”

The probe we need should be directed at the entire issue of undue influence, cyber and otherwise, in the 2016 election. It should be a no-holds-barred affair, offering maximum transparency, with no preconceptions, and guided by an abiding commitment to follow the evidence wherever it leads, no matter whose reputations are sullied, or whose misconduct or crimes are exposed.At the very minimum, the new inquiry should look at three crucial questions:

1. Who hacked the computers of the Democratic National Committee, why, and to what effect?
For the most part, the mainstream media, influential members of Congress—and at least at one point in early January, even Trump — have stated that Russia is to blame for hacking the computers of the Democratic National Committee as well as the emails of John Podesta, the longtime Washington power broker who chaired Hillary Clinton’s 2016 presidential campaign. In the mainstream narrative, Russian President Vladimir Putin holds a deep-seated animus toward Clinton, and at his direction, the fruits of the election-season hackings were forwarded to WikiLeaks to undermine Clinton, boost Trump’s bid for office, discredit American democracy and diminish American power abroad.

Such claims, even if probable, have yet to be verified.

In a March 7 essay on the work of Russian expat and Putin archcritic Masha Gessen, Glenn Greenwald writes for The Intercept:

Wild, melodramatic claims about hidden Russian plotting and Trump collusion are routinely and constantly hyped by leading media outlets based on nothing but their imaginations or, at best, coordinated whispers from intelligence officials utterly insusceptible to verification, from operatives trained in disinformation.

To be sure, some mainstream reporting on the Putin-Trump axis has been impressive, such as the New Yorker’s March 6 story, “Trump, Putin and the New Cold War.” Written by the magazine’s editor David Remnick and two colleagues, the article opens with a discussion of the “active measures” used by the former Soviet Union as early as 1982 to disrupt the American political process: the collection of American governmental secrets, creation of forged documents, dissemination of rumors and false information, collusion with front groups, etc.

Putin, according to Remnick and company, has imported such techniques into the digital age with renewed vigor and alacrity. The New Yorker piece makes a strong circumstantial case for Russian culpability in the 2016 election, based in part on the declassified report released by Director of National Intelligence James Clapper before Trump’s inauguration. The report declares that intelligence analysts, including those at the CIA and FBI, have reached positive judgments about Russian involvement with “high confidence.”

Still, as the article acknowledges: “The declassified report provides more assertion than evidence. Intelligence officers say that this was necessary to protect their information-gathering methods.” In other words, the report is, to invoke legal parlance, conclusory. Standing alone, despite what you may hear on CNN and MSNBC every day, it establishes nothing.

Notwithstanding the need to safeguard its methods, the intelligence community—from Clapper to Comey—has the burden of proof on all matters relating to Russian influence in the elections. A Watergate-style public inquiry would hammer this fact home, compelling our spy chiefs to reveal the identities (even if actual names are withheld) of the hackers, plus their motives. They and other witnesses also would be asked to assess the impact, if any, Russian hacking had on the election and to disclose clearly and unequivocally the content and extent of any communications between Trump campaign aides and associates and Russian officials, operatives and agents.

2. To what extent did fake news and Comey’s “October surprise” influence the outcome of the election?
Among the trove of subversive techniques that the Clapper report attributes to Putin is the deployment of the television network RT (formerly Russia Today) to disseminate false stories about the U.S. Indeed, the report contains a seven-page appendix titled “Kremlin’s TV Seeks To Influence Politics, Fuel Discontent in US” that discusses the rise of RT in language that often reads like it was culled straight from one of Joe McCarthy’s vintage anti-communist screeds.

Of particular importance, the report alleges that in the runup to the 2012 election, RT “portrayed the US electoral process as undemocratic and featured calls by US protesters for the public to rise up and ‘take this government back.’ ” Perhaps most striking is the report’s condemnation of an RT documentary on the Occupy Wall Street movement that depicted the movement “as a fight against the ‘ruling class,’ ” and portrayed “the current US political system as corrupt and dominated by corporations.”

Like most Americans, I rarely tune in to RT. When I do, I usually find the network cheesy, beset by low production values and animated by an amateurish pro-Russian bias. But I’ve seen nothing that isn’t fully protected by the First Amendment. And in the case of RT’s Occupy coverage, I see nothing that would qualify as fake news and a lot with which I and millions of left-of-center Americans actually agree.

This isn’t to say that fake news—stories circulated by online and print media that are intentionally false and created with a purpose to mislead—doesn’t exist. The loony “Pizzagate” conspiracy theory—that Hillary Clinton ran a child sex-trafficking ring from the basement of a D.C. pizzeria—is a prime example that it does. The absurd contention, which originated from a white supremacist Twitter account, was first circulated after Comey’s shocking late October disclosure that the FBI was reopening its Clinton email investigation. Pizzagate had the obvious goal of adding to Clinton’s distractions during the waning days of the campaign.Nor is fake news the sole province of the right and outlets such as Fox News, or exclusively the product of internet trolls based in Eastern Europe or Russia, as is commonly asserted. In his Intercept article on Gessen, for example, Greenwald singles out the Palmer Report as a source of liberal fake news.

Published by Bill Palmer, whom Greenwald labels “a crazed fanatical follower of Hillary Clinton,” the website circulated false claims during the campaign that the DNC and Podesta emails published by WikiLeaks were forged. More recently, the site has posted articles asserting that the vote totals of the election were altered, causing, as Greenwald writes, Slate to compare the Palmer Report to the National Enquirer and prompting The Atlantic to warn in its February issue of the rise of progressive fake news.

The most important question, then, isn’t whether fake news, however defined, exists, but whether—like alleged Russian computer espionage—it had a quantifiable impact on the last election. Let a panel of experts offer their opinions under cross-examination before a newly constituted select committee. And let’s demand that the committee include Comey on its witness list, given the media whirlwind engendered by his “October Surprise.”

3. What was behind Trump’s March 4 tweets?
Unwittingly or not, President Trump has raised this question himself, and as I said at the outset of this column, I agree with him that it must be answered. We need a Watergate-style investigation to allow him to explain why he accused his predecessor of personally tapping his “wires” at Trump Tower before the November plebiscite.

Sadly, since March 5, when Sean Spicer warned that Trump would have nothing more to say on the subject until an inquiry is over, the president has been eerily silent. Even his Twitter account has grown bland. On March 13, in his daily press briefing, Spicer added to the confusion, remarking that Trump may have misspoke when he tweeted about “wiretapping,” but “he used the word to mean, broadly, surveillance and other activities … that there’s no question occurred.”

Various news stories have suggested that Trump’s tweets stemmed from charges leveled by right-wing radio talk-show host Mark Levin and Breitbart News. As part of its mandate, a new select committee could determine whether the charges have any merit.

Toward that end, the committee could provide an overview of wiretapping law, calling on legal scholars to explain that presidents cannot personally issue wiretap warrants. Only judges can do that, either incident to a domestic criminal investigation upon a showing of probable cause, or under the Foreign Intelligence Surveillance Act (FISA) upon certification of the need for a wiretap from the attorney general and the director of national intelligence.

Despite copious denials from Democrats and the intelligence community, we still don’t know definitively whether Trump Tower or any of the phones or computers housed there or connected to it were bugged before the election, or what kind of warrants might have been issued beforehand if any searches took place.

President Trump, however, either knows the answer or could easily find out, with as little effort as a phone call to his attorney general. And he could easily show us what he knows. The president, though he may not realize it, has broad discretion to declassify and release executive-branch material, including any pre-election search warrants or FISA court orders issued for Trump Tower.

While such disclosures would do much to clear up the mystery behind the March 4 tweets, only Trump himself could lay the mystery to rest by appearing in person before the new select committee to answer questions under oath. Either his wiretapping claims have a basis in fact, or they were the product of a fevered imagination. Either way, we deserve the truth.

Testifying before Congress is rare for presidents, but not unprecedented. Abraham Lincoln voluntarily appeared before the House Judiciary Committee in 1862. Woodrow Wilson testified before the Senate Committee on Foreign Relations in 1919. Most relevant, Gerald Ford explained his decision to pardon Nixon in testimony before a House Judiciary subcommittee in 1974.

Would Trump accept an invitation from a new select committee to do the same? Would the invitation appeal to his unbridled ego and narcissism or cause him to retreat? We know only that he’ll be up practically any hour of the day or night, smartphone in hand, able to reply. We just have to call his bluff.

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