45 Days Plus 45 Days: Is Trump Violating His Own Election Tampering Executive Order?

As I noted last week, along with all the issues on which Trump’s top spooks clearly disagreed with him at last week’s Worldwide Threat Assessment hearing, there was also a remarkable exchange regarding a report mandated by a Trump Executive Order on election interference last year. Effectively, it became clear that Director of National Intelligence doesn’t want to brief the Intelligence Committee on whether Russia interfered with last year’s election.

Martin Heinrich: Director Coats, I want to come back to you for a moment. Your office issued a statement recently announcing that you had submitted the intelligence community’s report assessing the threats to the 2018 mid-term elections to the President and to appropriate Executive Agencies. Our committee has not seen this report. And despite committee requests following the election that the ODNI brief the committee on any identified threats, it took ODNI two months to get a simple oral briefing and no written assessment has yet been provided. Can you explain to me why we haven’t been kept more fully and currently informed about those Russian activities in the 2018–

Richard Burr: Before you respond, let me just acknowledge to the members that the Vice Chairman and I have both been briefed on the report and it’s my understanding that the report at some point will be available.

Dan Coats: The process that we’re going through are two 45 day periods, one for the IC to assess whether there was anything that resulted in a change of the vote or anything with machines, uh, what the influence efforts were and so forth. So we collected all of that, and the second 45 days — which we then provided to the Chairman and Vice Chairman. And the second 45 days is with DHS looking, and DOJ, looking at whether there’s information enough there to take — to determine what kind of response they might take. We’re waiting for that final information to come in.

Heinrich: So the rest of us can look forward — so the rest of us can then look forward to reading the report?

Coats: I think we will be informing the Chairman and the Vice Chairman of that, of their decisions.

Heinrich: That’s not what I asked. Will the rest of the Committee have access to that report, Mr. Chairman?


Heinrich: Chairman Burr?

Burr; Well, let me say to members we’re sort of in unchartered ground. But I make the same commitment I always do, that anything that the Vice Chairman and myself are exposed to, we’ll make every request to open the aperture so that all members will be able to read I think it’s vitally important, especially on this one, we’re not to a point where we’ve been denied or we’re not to a point that negotiations need to start. So it’s my hope that, once the final 45-day window is up that is a report that will be made available, probably to members only.

The reporting requirements come from this language:

Section 1. (a) Not later than 45 days after the conclusion of a United States election, the Director of National Intelligence, in consultation with the heads of any other appropriate executive departments and agencies (agencies), shall conduct an assessment of any information indicating that a foreign government, or any person acting as an agent of or on behalf of a foreign government, has acted with the intent or purpose of interfering in that election. The assessment shall identify, to the maximum extent ascertainable, the nature of any foreign interference and any methods employed to execute it, the persons involved, and the foreign government or governments that authorized, directed, sponsored, or supported it. The Director of National Intelligence shall deliver this assessment and appropriate supporting information to the President, the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security.

(b) Within 45 days of receiving the assessment and information described in section 1(a) of this order, the Attorney General and the Secretary of Homeland Security, in consultation with the heads of any other appropriate agencies and, as appropriate, State and local officials, shall deliver to the President, the Secretary of State, the Secretary of the Treasury, and the Secretary of Defense a report evaluating, with respect to the United States election that is the subject of the assessment described in section 1(a):

(i) the extent to which any foreign interference that targeted election infrastructure materially affected the security or integrity of that infrastructure, the tabulation of votes, or the timely transmission of election results; and

(ii) if any foreign interference involved activities targeting the infrastructure of, or pertaining to, a political organization, campaign, or candidate, the extent to which such activities materially affected the security or integrity of that infrastructure, including by unauthorized access to, disclosure or threatened disclosure of, or alteration or falsification of, information or data.

The report shall identify any material issues of fact with respect to these matters that the Attorney General and the Secretary of Homeland Security are unable to evaluate or reach agreement on at the time the report is submitted. The report shall also include updates and recommendations, when appropriate, regarding remedial actions to be taken by the United States Government, other than the sanctions described in sections 2 and 3 of this order.

And if DOJ and Homeland Security do find someone tampered with the country, Trump’s own Executive Order requires harsh sanctions on the perpetrators.

Sec. 2. (a) All property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in: any foreign person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and the Secretary of Homeland Security:

(i) to have directly or indirectly engaged in, sponsored, concealed, or otherwise been complicit in foreign interference in a United States election;

(ii) to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any activity described in subsection (a)(i) of this section or any person whose property and interests in property are blocked pursuant to this order; or

(iii) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property or interests in property are blocked pursuant to this order.

The Executive Order was a transparent attempt to stave off similar language in the Intelligence Authorization last year.

Today is — by my count — the end of that second 45 day period (or 90 days total from the end of the election). So Trump’s Administration should be deciding today whether — just as one example — the Russian attempt to hack Claire McCaskill was more successful than she apparently knew and whether, according to his own Executive Order, Trump now has to impose sanctions on Russia for trying.

Last week’s report actually envisioned Russia attempting to manipulate data, which might explain the sensitivity around this report.

Russia’s social media efforts will continue to focus on aggravating social and racial tensions, undermining trust in authorities, and criticizing perceived anti-Russia politicians. Moscow may employ additional influence toolkits—such as spreading disinformation, conducting hack-and-leak operations, or manipulating data—in a more targeted fashion to influence US policy, actions, and elections.

Alternately, Trump’s Administration knows the Russians tried to help him again in the mid-term elections but doesn’t want to do what they’ve promised to do in response.

Update: Big Dick Toilet Salesman Matt Whitaker and DHS Secretary Kirstjen Nielsen say that Trump doesn’t have to sanction Russia for hacking Claire McCaskill and others last year because the report they won’t even share with the Senate Intelligence Committee says Russia’s tampering had no impact on the election.

Although the specific conclusions within the joint report must remain classified, the Departments have concluded there is no evidence to date that any identified activities of a foreign government or foreign agent had a material impact on the integrity or security of election infrastructure or political/campaign infrastructure used in the 2018 midterm elections for the United States Congress. This finding was informed by a report prepared by the Office of the Director of National Intelligence (ODNI) pursuant to the same Executive Order and is consistent with what was indicated by the U.S. government after the 2018 elections.

While the report remains classified, its findings will help drive future efforts to protect election and political/campaign infrastructure from foreign interference.

23 replies
  1. Peterr says:

    Trump is learning that just because the Oval Office has no corners, it does not mean that he cannot be backed into one.

    Trump’s usual SOP when he sees that happening is to (a) lash out at the ones doing the cornering, (b) minimize what he’s being accused of, (c) do something to distract attention from the problem at hand, or (d) all of the above. Yesterday’s interview on CBS saw him doing all of these things when he was asked about his relationship with the IC chiefs.

    The 45 day x2 timing also falls a day before the SOTU, so I suspect he’s hoping that this little inconvenient report won’t be noticed. The VA governor’s problems also help him in that respect.

  2. MattyG says:

    DT can thank his sweet ass the Senate is still under Putin’s sway. Imagine how all this would be playing out if both houses had flipped? Right now the intenligence agencies don’t seem comfortable and appear to holding their cards until it’s clear how the committees will shake out – espeically if they are sitting on evidence of even a little bit of direct vote tampering in favor of agent orange.

        • P J Evans says:

          I’d want to change registration data, if I were going to mess with an election – people would either have to vote provisional ballots (which don’t always get counted) or they’d give up and not vote at all. I’m not sure if there are actual checks on that data in a lot of places.

        • MattyG says:

          The GOP seems to handle that pretty well in-house with their periodic voter registration purges – allegedly for legitimate housekeeping purposes but invariably at the expense of non GOP voters. Voters arrive at the polls to find they are not registered etc..

          Conceivaly Russia could meddle in a similar fashion on election day to gently skew results in critical precincts, though as EW points out there is no public evidence as yet. The level of knowlege of local metrics needed for this kind of thing to be effective always argued for domestic assitance.

        • MattyG says:

          I remember that the official response to these reports was very hedged at the time – or unspecific bland denials by harried and often worried looking state officials. There was reporting of Russian “dry run” hacks, but nothing substantive about what was happening in the final critical moments.

  3. Rapier says:

    I’m thankful EW deals with all these things based upon and motivated by what must be a belief that there are honest actors still, playing on the stage. The reporting a way to make a few of them do the right thing.

  4. Strawberry Fields says:

    I keep wondering what would cause more chaos, Russians manipulating the polls for trump or the Democrats in 2018. I honestly don’t know.

    If they had helped Democrats, they could give Trump ammunition to try to overturn an election which he would have otherwise lost.

  5. earlofhuntingdon says:

    I read on a blog somewhere that a former president has already tried to “pixie dust” away inconvenient executive orders, and has asserted the right – untested, mind – to delete or change them without publication. As my Whimsy takes me, as it were. Does anyone remember what blog that was?

    Mr. Trump is probably convinced that his tweets amount to executive orders, when he wants them to be, and can disregard them as the mindless musings of an idiot when he doesn’t.

  6. earlofhuntingdon says:

    Regarding the brouhaha over the sudden realization that Mr. Trump is a lazy shit, and spends more time goofing off than he does working, the WH characterizes the disclosure as a “breach of trust.”

    Newsflash: the breach of trust is the president’s.  What he does and fails to do every day is the breach of trust.

    • earlofhuntingdon says:

      As for the execrable Newt Gingrich’s defense of Mr. Trump’s curious schedule, Winston Churchill worked harder napping than Donald Trump has in his life.  He worked twelve to fifteen hour days, but mostly at night, hence his late morning rising and mid-day naps.  The comparison fails miserably, like most of Mr. Gingrich’s efforts.

      If Newt wants a more effective comparison, he should try Margaret Thatcher.  Her policies were neoliberal to the core: she destroyed the miners’ union, trebled the number of children living in poverty, and her followers built a lot of golf courses.  But she slept four hours a night, about the number of hours Mr. Trump manages to work in a day, or two.

  7. punaise says:

    veering OT, but 45 + 45 = 90, ergo:

    90 battles of fear on the Wall, 90 battles of fear.
    Take one down and pass it around, 89 battles of fear on the Wall.

    No more battles of fear on the Wall, no more battles of fear.
    Go to the core and promise them more, 99 battles of fear on the Wall.

  8. RisingDown says:

    Marcy writes: “The Executive Order was a transparent attempt to stave off similar language in the Intelligence Authorization last year.”

    I wonder if part of this design was so that should a report contain information damaging to Trump Admin, the White House could try to squash it.

    Can any body compel action on an Executive Order other than the Executive?

    IOW, could the Trump Admin just decide to insulate a report that could damage itself if the reporting is a requirement of an Executive Order?

  9. BroD says:

    “Russia’s social media efforts will continue to focus on aggravating social and racial tensions, undermining trust in authorities”

    and how did the Northam material find its way into our discourse?

  10. Jockobadger says:

    I don’t know @BroD (obviously) but the timing couldn’t be better.

    Any distraction is a Dogsend.

  11. Avattoir says:

    It wouldn’t have been possible to supplant by EO the requirement within an intel authorization for mandatory reporting to Congress, without Congressional cooperation in at least one of the two chambers.

    FWIW from Captain Obvious: The EO in question appeared during a period when there were Republican majorities in both chambers of Congress.

    FWIW from Ensign Noteworthy: It’s my strongly-held impression that this particular EO stands out from a lot of EOs pronounced on behalf of the Trump administration (I’m not about to say “from the typical EO” of under this current president simply because I’ve not performed any truly comprehensive Kagro-X-quality-level survey), not merely for its adherence to both rules that traditionally apply in American-English grammar as well as post Carter administration bureaucratic formatting, but for placing on the head of the administration some specific obligations (of the sort that would not occur to him, that would be inconsistent with any impression of having been inspired by him, that it would be highly unlikely he’s ever himself read, and that even if raised to his attention by anyone who does in fact read, would be dismissed summarily).

    All of that suggests to me that this EO is of Republican origin, rather than of the more specific Trumpian subset.

    In this regard, I’m now noticing a lot more articles popping up not just on the irretrievable wingosphere and the RWNJ press (including Fox if there’s any difference), but also on shit-disturber websites like Mediaite and, most disconcertingly, allofasudden on WaPo, making bald-faced unsupported conclusion-type claims (if not accusations, and there are those as well) to the effect that Democratic party operatives used ‘Russian interference type tactics’ during the run-up to the November 2018 mid-term elections.

    To all that, I think we need to add that among the more obvious steps available to combat Putin-inspired or any foreign regime interference in American democracy would be the imposition of a single federal election voter registration standard with the allocation of funds in the budget to implement that, mandatory paper or equivalent verification of vote counts, a federal standard of review of both the process and the counting of provisional ballots in elections to federal office, and a set of rules providing for the enforcement of a meaningful right to either early voting or time off on Election Day to vote, or else a national non-workday to accommodate Election Day.

    All those might seem like a Democratic party wishlist, but we’ve reached the crisis point where such is now indistinguishable from an imperative to national security, and SO one might rather easily envision at least some if not all of them forming a part of the recommendations for response.

    If so, it’s really not difficult to understand the Senate Majority Leader now having any different response to enforcing the 45+45 rule that his response in being called up by President Obama in the fall of 2016.

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