The HPSCI Russia Report, Reconsidered

What seems eons ago, but was only last spring, the House Permanent Select Committee on Intelligence (HPSCI) issued its report on “Russian Active Measures” in connection with the 2016 presidential election. The report was largely dismissed as a partisan effort by Chairman Devin Nunes, “one of Trump’s staunchest allies in Congress and a former adviser to his transition team,” to protect the president. The HPSCI minority issued separate views that claimed the majority’s findings were “crafted to advance a political narrative that exonerates the President, downplays Russia’s preference and support for then-candidate Trump, explains away repeated contacts by Trump associates with Russia-aligned actors, and seeks to shift suspicion towards President Trump’s political opponents and the prior administration.” Both the majority report and the minority response were then quickly forgotten.

With the Democrats assuming control of the committee in the 116thCongress, however, the HPSCI report may assume new significance. For one thing, the incoming majority will reopen the investigation in order to answer questions it claims the Republicans failed to adequately pursue. For another, there will be questions about the veracity of witnesses who testified before HPSCI in the 115thCongress. Michael Cohen, the president’s personal lawyer, has already plead guilty to making false statements to both HPSCI and the Senate intelligence committee regarding his efforts to pursue a Trump Tower Moscow deal during the 2016 presidential campaign.

It is important to distinguish between the facts reported by HPSCI and the characterization of those facts by the committee majority. It is fair to say that the HPSCI report gave President Trump the benefit of every reasonable doubt (and perhaps some unreasonable ones), but the facts it reported are nonetheless damning enough. Moreover, although the committee may have sought to exonerate the president in some respects, it also had some very pointed criticisms of the judgment and ethics of his campaign. It is therefore worth reviewing what HPSCI reported in the spring of 2018.

Russia’s Active Measures

The committee found that Russia employed an “active measures campaign” in connection with the 2016 election, a campaign which “achieved its primary goal of inciting division and discord among Americans.” It was “multifaceted,” “leverage[ing] cyberattacks, covert platforms, social media, third-party intermediaries, and state-run media.” Furthermore, “[h]acked material was disseminated through this myriad network . . . in conjunction with derisive messages posted on social media” in order to “undermine confidence in the election,” “sow fear and division in American society,” and ultimately to sabotage “the effectiveness of the future administration.”

The HPSCI report notes that Russia’s campaign was consistent with its efforts in other countries: “Russia supports fringe political parties and non-governmental organizations in Europe to further the Kremlin’s agenda while also disparaging or discrediting politicians and groups seen as hostile to Moscow.” For example, “during the recent French Presidential elections, Russian-controlled media highlighted defamatory stories about the private life and campaign funding of the more Russia-skeptic Emmanuel Macron.”

While the report avoids labeling Donald Trump (or for that matter Bernie Sanders or Jill Stein) as a “fringe” candidate supported by Russia, one can read between the lines. In any event, the report leaves no doubt who played the role of Macron in the U.S. election of 2016. Russian media “was critical of presidential candidates from both major parties but was consistently critical of candidate Clinton through the election.”

Clinton and her campaign were also the focus of Russia’s cyberattacks and its use of Wikileaks to disseminate politically damaging information obtained in those attacks. Thus, the report confirms key intelligence community findings, including that “Russian intelligence services, acting on the orders of Russian President Vladimir Putin, launched cyber and conventional influence operations—notably by leaking politically sensitive emails obtained from computer intrusions—during the 2016 election.”

Why was Clinton targeted as the more “Russia-skeptic” candidate? The report does not directly answer that question, but it provides some clues. It points out that “candidate Trump and several of his campaign advisers expressed policy views toward Russia quite different than those espoused by much of the Republican foreign policy establishment . . . .”

Trump also had an unusual number of campaign aides with pro-Russian views or close ties to Russia. These included his campaign chairman, Paul Manafort, who at the time of the report had been indicted for financial crimes related to his pre-campaign Russian activities. As the report notes, “[i]f the accusations against Manafort are true, he should have never served as a senior official with a campaign for the U.S. presidency, much less campaign chairman or manager.” (A jury found in August that many of the accusations were true.). Continue reading “The HPSCI Russia Report, Reconsidered”

An Update on Parliament’s Contempt Power

So at virtually the same time I told you that Parliament’s contempt power was in a state of desuetude, this happened. The House of Commons held the British government in contempt for its failure to publish the Attorney General’s legal advice regarding Brexit as the House had previously demanded.

To be sure, my prior post related to the use of contempt to impose punitive measures such as fines or imprisonment. These were not involved in yesterday’s contempt vote, which the article describes as “largely symbolic.” Yet it appears that the government intends to comply with the Commons’ demands as a consequence of the contempt vote. Moreover, while the use of contempt to impose rebukes is more common than fines or imprisonment, it is still extremely rare. According to this 2012 analysis I referred to yesterday, the last time someone was called to the bar of the house to be admonished by the Speaker was in the 1956-57 session. And it is apparently the first time ever that the British government itself has been held in contempt.

It should be noted that Congress’s inherent power of contempt derives from Parliament’s power (and thus has been recognized as being an “inherent” part of the legislative power conveyed in Article I). From time to time, the idea of using the inherent contempt power against a recalcitrant executive branch has been broached, but the idea always founders on practical considerations (e.g., what happens if the recalcitrant executive official is protected by security that does not want to surrender him/her to the custody of the Sergeant at Arms?).

If the House (or Senate) were to follow the procedure apparently used in the House of Commons yesterday, however, these problems largely disappear. The Commons simply voted on a resolution holding the government in contempt, without following the normal practice of referring the matter to the Committee on Privileges. No trial was held, nor was anyone (it appears) called to the bar of the house.

If Congress were to follow such a process, it would more closely resemble a censure or similar resolution, as opposed to a finding of contempt. It could be argued that such a largely symbolic action would have little impact in our system, where the continuation of the government does not depend on majority support in the legislature. On the other hand, if contempt were used, it would be possible for a trial to be held, with an executive official (or the entire executive branch) as the “defendant.” It would be up to the executive branch whether it wanted to attend or mount a defense. One can imagine that such a process could be more powerful as a display of soft power than a simple vote on a resolution.

We will see if some enterprising member of Congress picks up on this.

Facebook’s Encounter with Parliament’s Inherent Powers

A parliamentary committee has seized a trove of internal Facebook documents relating to the company’s data and privacy policies and practices. The documents were obtained via a U.S. businessman, Ted Kramer, who had sued Facebook in state court in California. Kramer had access to the documents because his company had obtained them through discovery in the litigation, but a protective order prohibited the parties from sharing them with the outside world.

So how did the documents end up with a House of Commons committee investigating Facebook in the U.K.? Somehow the chair of the committee learned Kramer was in London on business, and he thereupon dispatched the Commons Serjeant at Arms to Kramer’s hotel. The Serjeant at Arms (no word on whether he was carrying his sword) served Kramer with an order demanding the documents, and the committee followed up with an email threatening the businessman with contempt of Parliament if he did not comply. After a meeting with the committee chair in which he was allegedly told he could be subject to fines and imprisonment for contempt, Kramer (who unwisely attended this meeting without his lawyers) used his laptop to access and download the documents to a USB drive and then handed it to the committee.

Facebook argues that the document disclosure violated the California court’s protective order, and it is seeking discovery regarding this disclosure (presumably hoping to establish collusion between Kramer and the committee). It has also demanded that the committee return its documents. The committee, however, notes that it is not subject to the court’s jurisdiction and is in any event protected by parliamentary privilege. The committee has already used the documents in the course of an extraordinary hearing held in London on November 27, 2018 in which lawmakers from nine different countries, calling themselves the “International Grand Committee on Disinformation,” interrogated a Facebook representative about the company’s policies and practices.

This series of events raises some interesting questions, which we will briefly consider below. Continue reading “Facebook’s Encounter with Parliament’s Inherent Powers”