It has been a remarkable, perhaps unprecedented, year in American politics. Rancor, if not outright fear and hatred, prevails. Half-truths, mis-truths, name calling and a litany of much worse. A centerpiece of this blog is that those who would lead can only lead with integrity. So we have taken up the tasks of identifying and exposing political hypocrisy. We have written about it here and now focus on it again with Donald Trump days away from the Presidency. The context here is the simple question, was the election result illegitimate?
The Third Presidential Debate and the Threat to Democracy
We recall the famous remark during the third Presidential debate. It sparked furious claims that the foundations of our democracy were being jeopardized.
[Chris Wallace]: Will you absolutely accept the results of this election?
[Donald Trump]: I will look at it at the time.
And then came Mrs. Clinton’s equally famous reply:
That is not the way our democracy works. [The United States has been] around for 240 years. We’ve had free and fair elections. We’ve accepted the outcomes when we may not have liked them. And that is what must be expected [from a Presidential candidate].
Mr. Trump’s comment was claimed to be monumental. Some called it “a stunning moment that has never been seen in the weeks before a modern presidential election.” Mr. Trump’s position was so bad that it “threatens to cast doubt on one of the fundamental principles of American politics – the peaceful, undisputed transfer of power from one president to a successor who is recognized as legitimate after winning an election.”
So here we are after the election and, guess what? We have a challenge to our democracy – but this time from the losing Democratic side that had not expected to lose.
Challenging the Result of a Democratic Election – Political Hypocrisy on Display
Mrs. Clinton was right. We should accept the outcomes of elections, even when our candidate doesn’t win. It is hypocritical to advocate the moral position that election results must be respected, and then fail to do so, with the exceptions that we will attempt to define below.
Was the Election Result Illegitimate? – Mrs. Clinton’s View
Sadly, national leaders who stood quietly behind their party nominee’s comments now challenge directly the election results. Two people who could fairly be seen as Mrs. Clinton’s surrogates raised the specter of illegitimacy directly. Her campaign director, John Podesta, stated that:
It’s very much unknown whether there was collusion [between the Russian government and Mr. Trump]. What did “Trump Inc.” know, and when did they know it? Were they in touch with the Russians? I think those are still open questions.
Brian Fallon, Mrs. Clinton’s press secretary during the election run referenced a series of “new developments . . . that call into question the legitimacy of his win.”
It is reasonable to conclude that, indirectly through these surrogates, Mrs. Clinton herself questions Mr. Trump’s legitimacy. In fairness, a direct link to Mrs. Clinton is murky given that her campaign was over at the time these comments were made. Arguably, neither Mr. Podesta nor Mr. Fallon have the authority to speak on her behalf. We have not heard directly from Mrs. Clinton on this issue. Nevertheless, their answer is “yes” to the question was the election result illegitimate.
Was the Election Result Illegitimate? – President Obama’s View (Indirectly)
A cleaner attribution runs from President Obama’s Chief of Staff, Denis McDonough, to the President. As Chief of Staff Mr. McDonough is a spokesman for the President. CNN host Jake Tapper asked him whether President Obama thought Mr. Trump was legitimate. Mr. McDonough did not answer that question. Instead, he offered this: “The President has made very clear that he believes that [Mr. Trump] is the ‘freely elected’ president.” It appears that President Obama’s indirect answer is also “yes” to the question was the election result illegitimate?
Was the Election Result Illegitimate?- Other National Leaders
Other Democratic party notables went further. Congressman John Lewis was blunt: “I don’t see the President-elect as a legitimate President. I believe the Russians participated in getting this man elected. They helped destroy the candidacy of Hillary Clinton.”
Similarly, Congressman Jerrold Nadler stated: “[Trump] was legally elected but the Russian weighing in on the election, the Russian attempt to hack the election, and frankly the FBI’s weighing in on the election I think makes his election illegitimate.” Senator Diane Feinstein said that she believes Russian interference altered the outcome of the election.
When It’s Right to Claim Illegitimacy – The Tests
We can think of at least two clear circumstances under which a Presidential election result is illegitimate. Two gray areas are also described.
The Clear Cases
First, where the evidence is clear that the candidate himself directly or indirectly participated in conduct that in fact altered the election outcome. For example, President Kennedy won the 1960 election with 303 electoral votes to Richard Nixon’s 219. A total of 51 electoral votes came from Illinois and Texas. If Mr. Nixon had won those states, he would have won the election.
in the immediate aftermath of President Kennedy’s election allegations quickly surfaced that JFK’s operatives helped “steal” the vote in Cook County, Illinois. And in Texas, which JFK won by approximately 50,000 votes, there were widespread claims of voter fraud. In both instances, however, there was no conclusive proof of the allegations. If there was proof, JFK’s election would have been illegitimate.
Second, where the evidence is clear that independent third parties intentionally altered actual vote counts leading to a different outcome, the election result is illegitimate. For example, if a foreign government is able to hack into voting machines or alter voting tabulation software and thereby alter the final voting outcome. In those instances, the election outcome would be illegitimate.
The Gray Areas
Now for two murkier situations. First, consider this scenario. There is clear evidence that material adverse information with respect to a candidate’s character or past actions was intentionally altered and widely distributed. The opponent’s surrogates disclosed the information. The candidate was viewed as leading the election (or the election was in doubt) prior to the distribution of the information. Further, the candidate is unable to satisfactorily disprove the adverse claims. The candidate then loses the election.
Would the result be seen as illegitimate? In this case the opponent’s direct actions were improper. The result of the election would be seen as illegitimate. Would the result in fact be illegitimate? Yes, because (1) the actions were taken by the opponent, and (2) the election result was widely viewed as directly impacted by those actions, even without proof that recorded votes were altered.
Assume the same facts with one change. The opponent’s surrogates did not disclose the material adverse information. Instead, independent third parties who favor the opponent disclosed the information. Would the election result be seen as illegitimate? Probably yes, because the information disclosed was both material and adverse. Would the result in fact be illegitimate? We think not. Although bad acts occurred, they were perpetrated by independent third parties. There was no alteration of the actual vote count.
The Publicly-Known Events of 2016 Do Not De-Legitimize the 2016 Presidential Election Result
Let’s take a look at the two subject matters that have drawn great interest as potential sources of illegitimacy. Claims of hacks sponsored by the Russian government, and allegations of impropriety regarding the conduct of the FBI. What do we know so far?
Russian Government Hacking as a Source of Illegitimacy
For the sake of this analysis we assume the worst from the facts disclosed to date. The Russian government sponsored hacks into the servers of the Democratic National Committee (and elsewhere). Those hacks resulted in the theft and ultimate disclosure of thousands of emails of Mrs. Clinton’s campaign director, John Podesta and others. The contents of some of those emails reflected poorly on Mrs. Clinton.
Hacking by foreign governments is the norm for 21st century spy-craft. Every developed nation does it. We will go a step further and adopt the conclusions of the U.S. intelligence community. We also assume that the Russian government wanted Mr. Trump to win the election.
We suggest that there’s nothing new or unique to the notion that an adversarial foreign government might prefer one candidate for the Presidency over another. A foreign government that takes active steps to create that outcome is not, in itself, enough to deligitimize the outcome. It all depends on the steps taken and with whom.
Analysis of Russia’s Actions
So let’s walk through the analysis. To date, there is no proof, or significant inference, of a direct or tacit agreement to act as between Mr. Trump and Russia. As a result, our first illegitimacy test is not satisfied.
Then we turn to the second test. Here, the focus is squarely upon the actions actually taken by the Russians. They hacked DNC emails. The email contents were publicly disclosed. Those contents were arguably politically embarrassing to Mrs. Clinton. But the contents as disclosed are not claimed to be altered from their original form. We equate this situation to the Pentagon Papers, as we discussed here. In both cases the act of revelation was illegal. In both cases the information revealed was truthful.
Let’s then assume that the stolen, but truthful, disclosed information altered voters opinions. Enough of them switched their preference from Mrs. Clinton to Mr. Trump, causing Mr. Trump to win the election. Would this render the the election result illegitimate? No. In this case, voters may their choice based solely on truths.
As a result, the facts as we know them do not illegitimize Mr. Trump’s election. It might be illegitimate if the Russians (or a third party) had altered the contents of the stolen emails. It would be illegitimate if the Russians had altered the count of the actual votes cast. But those are not the facts. Accordingly, the election result is legitimate, and should be respect.
Improper Conduct by the FBI as a Source of Illegitimacy
Now let’s review the FBI’s conduct. On July 5, 2016, FBI Director James Comey issued a statement on the FBI’s investigation of Mrs. Clinton’s use of a personal e-mail system. Director Comey concluded that “we did not find clear evidence that Secretary Clinton . . . intended to violate laws . . .” He also stated that “there is evidence that [Mrs. Clinton and her colleagues] were extremely careless” in handling “highly classified information.” As a result, no charges were brought against Mrs. Clinton. From the public’s perspective, the FBI’s investigation relating to Mrs. Clinton’s email appeared to end.
Eleven days before the election Director Comey informed Congress that the email investigation remained open. He revealed that the FBI would review additional emails on a laptop of the husband of a Clinton aide. Comey’s new action received substantial press coverage, including claims that he was intending to swing the election to Mr. Trump. The FBI immediately commenced an exhaustive review of the new emails.
Finally, two days before the election, Director Comey announced the new review was complete. The FBI did not change it’s prior conclusion. No charges were brought against Mrs. Clinton.
Analysis of the FBI’s Action
Director Comey’s actions do not make the election result illegitimate. There is no evidence to support any claim that Director Comey acted in concert with Mr. Trump. Further, there is no evidence that Director Comey altered information. In fact, Director Comey’s public announcements were all truthful as to actions taken by the FBI.
The Director’s motivations have been challenged. The timing of his announcements have been questioned. There are claims of breeches of FBI protocols. Why was the prosecutorial decision made by the FBI? But we need not review those matters in the context of determining election illegitimacy. Was the election result illegitimate due to the FBI’s actions? No. None of the concerns surrounding the FBI would cause Mr. Trump’s election to be illegitimate.
The revelation of new facts could alter our conclusions. But until then, we agree with Mrs. Clinton’s view: the election result should be respected, whether we like the outcome or not. Was the election result illegitimate? No.
