Tom Clancy spun a pretty good yarn in A Clear and Present Danger – a president issues an executive order to assassinate a whole lot of Colombian drug lords, without telling Congress, or Colombia, because a president can do that, if certain parties present “a clear and present danger” to the United States. That’s his call – except it really isn’t his call – but the idea is the courts can sort that out later.
Clancy’s president went too far. Franklin Roosevelt went too far with his public, not secret, executive order to send Japanese-Americans to internment camps in the middle of nowhere, because they presented “a clear and present danger” to the United States. That seemed like a good idea, at the time. Over time, that seemed like an awful thing to do – but there are secret executive orders. In 1953, Eisenhower ordered the CIA to work with the British to overthrow the newly-elected socialist government in Iran and bring back the Shah. The newly-elected socialist government in Iran presented “a clear and present danger” to the United States. Those guys were going to nationalize Iran’s oil industry and throw out the American and British oil companies. Iran would control who got what, and at what price. That was the clear and present danger. Eisenhower took care of that, in secret. But secrets don’t last. Iran has been our enemy ever since. It was the same with Nixon and Allende in Chili. The people overthrew Allende, and killed him, with Henry Kissinger’s help. Nixon and Kissinger denied everything. Eisenhower denied everything. But they had a fallback position. Certain parties present “a clear and present danger” to the United States. They did what had to be done.
This was an extension of previous arguments:
Modern First Amendment law can be said to have been born in a series of World War I era prosecutions for violation of the Espionage Act of 1917. The first of these cases, Schenck v United States, involved an appeal of the general secretary of the American Socialist Party, who had been convicted for distributing 15,000 leaflets to young men of draft age critical of the war effort and, especially, the draft. The leaflet urged readers to “Assert your rights. Do not submit to intimidation.”
Writing for the Court in Schenck, Justice Oliver Wendell Holmes asked whether “the words create a clear and present danger that they will bring about substantive evils Congress has a right to prevent?” As used in Schenck, Holmes’s test seemed to demand little more than that the government show that the words in the leaflet had a bad tendency – no proof was demanded that the words actually persuaded anyone to evade the draft, or even that they were highly likely to have that effect. Schenck’s conviction was upheld.
Oliver Wendell Holmes came up with those magic words “clear and present danger” but nothing was settled:
In Abrams v United States we see the beginnings of a movement to a more speech-protective test. Although the Court majority voted to uphold the Espionage Act convictions of Jacob Abrams and other anarchists who distributed leaflets attacking the United States’ decision to send troops to Europe to defend Czarist Russia against the Bolsheviks, Justices Holmes and Brandeis published a powerful dissenting opinion. Holmes argued that the “silly leaflet” of “poor and puny anonymities” posed no real danger to U. S. efforts, and thus failed to present a “clear and present danger” that the government might be justified in trying to suppress. Writing that “the best test of truth is competition in the market” of ideas, Holmes urged his brethren to take their responsibilities to enforce the First Amendment more seriously.
They did. Since then the courts have been more Holmes and Brandeis than Oliver Wendell Holmes. Anyone can say this or that is “a clear and present danger” to the United States. Prove it.
First Amendment law changed, but everything changed. George W. Bush said that Saddam Hussein with his weapons of mass destruction was a clear and present danger to the United States. He had proof. He didn’t. Donald Trump says that the trade policies Canada and Mexico and China and the European Union present a clear and present danger to the United States. He has proof. He doesn’t. He makes up facts and figures. Some of their trade policies are a bit irritating – China plays fast and loose with intellectual property rights – but most of everyone’s trade policy is fine for both parties, and a bit boring. Donald Trump, however, says Russia meddling in our last election presented no problem at all – if that even happened. There’s no clear and present danger there.
Others in his administration contradict him:
The nation’s top intelligence officer said on Friday that the persistent danger of Russian cyberattacks today was akin to the warnings the United States had of stepped-up terror threats ahead of the Sept. 11, 2001, attacks.
That note of alarm sounded by Dan Coats, the director of national intelligence, came on the same day that 12 Russian agents were indicted on charges of hacking the Democratic National Committee and Hillary Clinton’s presidential campaign. Mr. Coats said those indictments illustrated Moscow’s continuing strategy to undermine the United States’ democracy and erode its institutions.
“The warning lights are blinking red again,” Mr. Coats said as he cautioned of cyberthreats. “Today, the digital infrastructure that serves this country is literally under attack.”
He sees a clear and present danger, but his boss remains unconvinced:
Coming just days ahead of President Trump’s meeting with President Vladimir V. Putin of Russia, Mr. Coats’s comments demonstrate the persistent divisions within the administration on Russia – and on how hard a line that senior administration officials should take with Moscow on its cyberspace activities.
Mr. Trump has said he would raise the issue of Russian election interference with Mr. Putin during their meeting in Helsinki, Finland. And Mr. Trump regularly cites some strong actions his administration has taken to punish Moscow, such as expelling 60 Russians accused of intelligence activities. But Mr. Trump and the White House also routinely minimize information about the impact of Moscow’s cyberattacks and intrusion efforts on the 2016 election.
The government’s national security agencies, particularly the intelligence agencies, have been far more concerned about Russia’s 2016 interference campaign – and efforts still underway.
The rest of this item is a few thousand words of depressing detail – solid proof of a clear and present danger – but there was other proof:
A dozen Russian military intelligence officers were indicted Friday on charges they hacked Democrats’ computers, stole their data and published those files to disrupt the 2016 election – the clearest connection to the Kremlin established so far by special counsel Robert S. Mueller III’s investigation of interference in the presidential campaign.
The indictment against members of the Russian military agency known as the GRU marks the first time Mueller has taken direct aim at the Russian government, accusing specific military units and their named officers of a sophisticated, sustained effort to hack the computer networks of Democratic organizations and the Hillary Clinton campaign.
Deputy Attorney General Rod J. Rosenstein announced the charges at a midday news conference. Mueller, as has been his practice, did not attend the announcement. Court records show that a grand jury that Mueller has been using returned an indictment Friday morning.
The suspects “covertly monitored the computers, implanted hundreds of files containing malicious computer code, and stole emails and other documents,” Rosenstein said. “The goal of the conspirators was to have an impact on the election. What impact they may have had is a matter of speculation; that’s not our responsibility.”
The indictment comes days before President Trump is due to meet with Russian President Vladimir Putin in Finland. Rosenstein said he briefed Trump earlier this week on the charges.
Trump shrugged. He’ll meet with Putin anyway. Every single Democrat in Congress said that Trump should NOT meet Putin, not now. More than a few Republicans said the same thing. Trump will meet with Putin anyway, and there was this:
Trump’s lawyer Rudolph W. Giuliani said on Twitter that the indictments “are good news for all Americans. The Russians are nailed. No Americans are involved.” He then called on Mueller “to end this pursuit of the president and say President Trump is completely innocent.”
Giuliani wasn’t listening to Rosenstein, who said no Americans were indicted “in this particular report” – a warning. Stay tuned. Others understood that:
“The detailed charges in this indictment make it unmistakably clear that the United States faces an aggressive, sophisticated adversary bent on using cyber means to subvert our democratic processes and institutions,” said David Laufman, a former chief of the Justice Department’s Counterintelligence and Export Control Section. “Now is the time for unequivocal recognition of this threat by both the executive branch and Congress, and for a unified and well-coordinated commitment to confront it.”
And this was a detailed report:
The 11-count, 29-page indictment describes in granular detail a carefully planned and executed attack on the information security of Democrats, as Russian government hackers implanted hundreds of malware files on Democrats’ computer systems to steal information. The hackers then laundered the pilfered material through fake personas called DC Leaks and Guccifer 2.0, as well as others, to try to influence voters.
One of their conduits, identified in the indictment only as “Organization 1,” was WikiLeaks, the global anti-secrecy group led by Julian Assange, according to people familiar with the case. The indictment describes WikiLeaks communicating with Guccifer 2.0 to obtain material.
On July 6, 2016, according to the indictment, WikiLeaks wrote, “if you have anything Hillary related we want it in the next tweo [sic] days prefable [sic] because the DNC [Democratic National Convention] is approaching and she will solidify Bernie supporters behind her after,” referring to Clinton’s rival for the Democratic nomination, Sen. Bernie Sanders (I-Vt.). WikiLeaks explained, “We think trump has only a 25% chance of winning against Hillary… so conflict between Bernie and Hillary is interesting.”
WikiLeaks released nearly 20,000 Democratic National Committee emails on the eve of the convention later that month, providing an embarrassing look at party operations and attitudes toward the Sanders campaign.
Mueller has it all, and the connection to Republicans and the Trump campaign:
The indictment offers troubling new accusations about the extent of Russian hacking efforts and interactions with Americans.
“On or about August 15, 2016, the conspirators, posing as Guccifer 2.0, received a request for stolen documents from a candidate for the U.S. Congress,” the indictment states. “The conspirators responded using the Guccifer 2.0 persona and sent the candidate stolen documents related to the candidate’s opponent.” The indictment does not identify the candidate.
The indictment also describes an online conversation between the GRU, posing as Guccifer 2.0, and a “person who was in regular contact with senior members of the presidential campaign of Donald J. Trump.”
People familiar with the case said that person is longtime Trump adviser Roger Stone.
And there’s this:
The indictment also notes an interesting development on July 27, 2016 – the day then-candidate Trump gave a press conference declaring his hope that missing Clinton emails would be found and made public, saying: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.”
The indictment says “on or about” that same day, “the conspirators attempted after hours to spear phish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton campaign.”
Trump said, do it. They did it. Immediately – but perhaps that’s a coincidence. Perhaps it isn’t. That’s why Mueller wants to interview Trump. What were you thinking? That’s why Trump’s attorneys will never let him talk with Mueller. He might just say what he was thinking, but now he’s thinking this:
Mueller’s probe has come under sustained attack from Trump and at a press conference in England on Friday before Rosenstein spoke, the president again labeled the investigation a “witch hunt.”
“I think that we’re being hurt very badly by the – I would call it the witch hunt,” said Trump as he stood beside British Prime Minister Theresa May. “It really hurts our relationship with Russia.”
Rosenstein said of his decision to brief Trump, “It was important for the president to know what information we’ve uncovered because he’s got to make very important decisions for the country. He needs to understand what evidence we have of foreign election interference.”
There’s a clear and present danger. Trump shrugged, but Fred Kaplan says proof is proof:
The indictment confirms not only the broad outlines of the intelligence community’s 2017 report but also certain assessments, leaked to the press over the past several months, that had sparked controversy in certain circles. It states, for instance, that key purveyors of stolen emails – notably Guccifer 2.0 and DC Leaks, which claimed to be independent actors – were, in fact, fictitious covers “created and controlled” by the GRU conspirators. It also states that the hacking of several state election boards, and of contractors who verified voter-registration rolls, was also conducted by the GRU.
This leaves Trump few options:
It is inconceivable that Putin did not know about the GRU election meddling. (The U.S. intelligence community concluded, in its early-2017 report, that Putin directed the effort.) But that may not trouble Trump any more than it has in their previous conversations. At his press conference Friday in England, just hours before the indictment’s release, Trump said he would ask Putin whether he meddled in the election and Putin would likely say “No,” as he has in the past. Beyond that, he said, there’s nothing more to say. (In a June 28 tweet, Trump wrote, “Russia continues to say they had nothing to do with Meddling in our Election!” as if that settled the matter. He then went on to ask why no one was investigating Hillary’s Russia connections or the corruption of “Shady James Comey.”)
With the indictment in the news, just three days before his long-awaited, much-desired meeting with Putin, it might be a stretch even for Trump to leave matters there, much less to push for the “good relations” that he avidly seeks. Proceeding as planned, as if the indictment hadn’t happened, couldn’t help but raise questions – perhaps even among supporters – about his own complicity.
But there’s another option:
Trump could also use the news as an excuse to escalate his war on the Justice Department and to cite the indictment’s timing as evidence of efforts by the “deep state” to thwart his presidency and to embarrass him personally.
If he goes that route, he will be stepping into new realms of internecine conflict. The Justice Department could not possibly return an indictment of this sort – charging 12 individual Russian hackers by name – without close cooperation with several branches of the intelligence community, probably including the National Security Agency, which no doubt at some point hacked the hackers to see who was doing what.
There are no good options:
Rosenstein made one other intriguing remark. “I want to caution you,” he said, “that people who speculate about federal investigations usually don’t know all of the relevant facts. We do not try cases on television or in congressional hearings.”
The investigation is taking – or has already taken – directions that no one on the outside knows. Those who still claim it’s a witch hunt or a boondoggle may soon find themselves embarrassed, or, in some cases, indicted themselves.
There is a clear and present danger here, to Trump, and his son, and Giuliani and more than a few others, but everyone should be used to this sort of thing by now. Jamelle Bouie explains why:
The nomination of Brett Kavanaugh and the prospect of a solid conservative majority on the Supreme Court have provoked a new kind of rhetoric from many Democrats. “If he proves as eager an executor of the president’s bitter campaign to overturn Roe v. Wade and sabotage Americans’ health care as his record suggests,” said House Minority Leader Nancy Pelosi, “a woman’s right to choose will be repealed and the health coverage and economic security of 130 million Americans with pre-existing conditions will be in grave peril.”
This is neither wrong nor hyperbolic… A generation after Republicans began to attack Democrats as essentially illegitimate, Democrats are now responding in kind, claiming Republicans are a genuine danger to constitutional government. Where the two parties once understood each other as legitimate alternatives in governance, they now increasingly view each other as outright threats to the constitutional order as they understand it.
Each side, now, says that the other side presents a clear and present danger to the United States, but only one side started this:
Although elements of this kind of rhetoric can be found in the 1970s and 1980s – notably Democrats’ crusade against Robert Bork’s nomination to the Supreme Court – the true innovator was Newt Gingrich. As House Speaker after the 1994 midterms, Gingrich brought a philosophy of total war to the GOP. He cast the Clinton administration, and the Democratic Party at large, as something less than fully American. Embracing legislative brinkmanship and government shutdowns, Gingrich and his hard-right supporters blasted away at key norms of compromise and negotiation that helped Congress function. That scorched-earth approach to politics culminated in a bitter attempt to impeach President Clinton, who was cast as a threat to the republic itself.
And of course there was a reaction, and then a counter reaction:
Democrats and liberals in particular took their first serious move in this direction during the George W. Bush administration, filibustering judicial nominations, and adopting the language of acute constitutional threat in response to the most controversial elements of the “war on terror.”
But Republicans were one step ahead. Their innovation in 2009 was to embrace radical obstruction against Barack Obama and congressional Democrats, jettisoning any compromise or negotiation in favor of total victory. This was reinforced by a resurgent conservative grassroots that understood Obama and his brand of technocratic liberalism as a catastrophe for their vision of America. Conservative media figures like Glenn Beck denounced Obama as an incipient tyrant – Beck warned that universal health care would lead to a “fascist state” – while Republican politicians pandered to dark conspiracy theories about the president’s illegitimacy. The clear message, from the grassroots to the leadership of the GOP, was that Obama was an existential threat to the country, to be stopped by any means necessary.
That was tiresome. Anyone can say this or that is “a clear and present danger” to the United States. Glenn Beck can say anything he wants. Can he prove that? The conservative grassroots and Republican politicians can say anything they want too. Democrats and liberals are a clear and present danger to the United States. Can they prove that? Their “proof” turns out to be those FEMA reeducation camps for millions of conservatives and that child sex-trafficking ring run by John Podesta and Hillary Clinton out of a pizza shop in northern Virginia – and Benghazi or something.
They’ve got nothing, but Jamelle Bouie says that the other side actually has something:
Given Donald Trump’s demagogic racism, open corruption, and clear contempt for the institutions of American governance, Democrats have a better case for treating the current president as a threat to the political and constitutional order. Trump proudly defies the rules and norms of liberal democracy, demonstrating an authoritarian’s contempt for anything that might bind his will. Given that, it’s striking how few Democratic lawmakers have embraced the totalizing rhetoric and tactics deployed by Republicans under the previous administration.
Maybe they should do that. Donald Trump is a clear and present danger to the United States. The proof keeps piling up, but who can sign an executive order to take care of that?
Just Above Sunset 