Just before Christmas, a story broke that seemed too strange — and too hypocritical — to be true. As Democratic Party elders were trying to stifle loutish impeachment threats by fanatical House freshmen, it was revealed that Democratic operatives had used cyber fraud to manipulate the 2017 Alabama Senate race.
It’s hard to know precisely who masterminded the plot because the perpetrators have lawyered up and are pointing fingers at one another. But according to the New York Times and subsequent reporting in The Washington Post, the culprits in the self-styled “Project Birmingham” used the same tactics employed by Russian disinformation specialists that lie at the heart of the 2016 U.S. presidential election controversy.
Those tactics included a phony Facebook page, “Alabama Conservative Politics,” intended to divert votes from GOP nominee Roy Moore to a Republican write-in candidate. It entailed a “false flag” effort suggesting that automated Russian bots were supporting Moore on Twitter. The tactics worked. Seven weeks before the election, the Montgomery Advertiser published a piece headlined “Russian invasion? Roy Moore sees spike in Twitter followers from land of Putin.” Other news outlets followed suit, further tarnishing a candidate reeling under sexual misconduct allegations.
Did this effort cost Moore the election, which he narrowly lost to Doug Jones? Did dirty tricks deprive Republicans of a supposedly safe seat at a time when control the U.S. Senate was up for grabs? Some observers are skeptical. “Roy Moore is so well known in Alabama that people had very settled opinions about whether they wanted him as their senator before the race even started,” University of Alabama political scientist Joseph L. Smith told reporters.
That sounds right, but the same could be said of Hillary Clinton and Donald Trump. Even Democrats who claim the 2016 election was stolen from them would concede that almost everyone had “settled opinions” about these two nominees before Russian troll farms began spewing their garbage during the 2016 general election. But the truly stunning hypocrisy is that Project Birmingham, which included a former Google engineer who worked on the 2012 Obama presidential campaign and for the Obama administration, faithfully emulated the tactics of the Russian troll farms dubbed “Fancy Bear” and “Cozy Bear,” which are under the auspices of Russia’s intelligence services and military.
In other words, Democrats who played games in Alabama did more than erode their party’s moral high ground. In consciously mimicking the enemy, they also put the spotlight on special prosecutor Robert Mueller and his investigation.
Last February, a grand jury impaneled to hear Mueller’s evidence indicted 13 Russians and three Russian companies for their 2016 activities. The special prosecutor followed this up with July indictments of 12 Russian military officers for hacking, a serious crime. But it’s the February 2018 indictments that are more problematic for Democrats.
Those 13 Russian trolls were indicted on conspiracy charges. But what laws did they conspire to break? Federal election statutes prohibiting campaign contributions, maybe? Abusing their travel visas, perhaps, as none of the Russians who visited the U.S. told U.S. Customs what they were up to? Those are misdemeanors, and it’s not what the government charged them with anyway. They were indicted for conspiring “to defraud the United States.”
It’s not a crime to post political comments under an online alias. It’s not a criminal offense in this country to spew inaccurate information on social media — or tell outright lies about candidates for public office If it were, the U.S. would need a hundred more prisons, at least one of them for politicians and campaign consultants.
Mueller’s theory of the case became clear on June 15, when Deputy Solicitor General Michael Dreeben argued in court against a motion by Concord, one of the indicted Russian corporations, to dismiss the charges. The special counsel, Concord argued, targeted it “for a contrived crime not specifically defined in any statute, without notice and under a standard known only to the special counsel.”
“We do not need to prove a criminal violation of the underlying statute,” Dreeben told U.S. District Court Judge Dabney Friedrich in response.
If you find that standard alarmingly elastic, you’re not alone. “The federal government does lots of things, more and more every year, and many things private parties do can get in the government’s way,” former Justice Department lawyer Jack Townsend told Weekly Standard writer Eric Felten, one of the few journalists who explored the implications of Muller’s indictment. “It can’t be that each such action is automatically a felony.”
Yet, Dreeben was speaking the truth. “Conspiracy to defraud,” known as a “Klein conspiracy,” comes from a complex 1950s tax case in which the defendants and their accountants went to extraordinary lengths to hide income – they opened no fewer than 17 offshore companies, among other strategies – consistently thwarting the Internal Revenue Service until federal prosecutors secured a conviction on a single conspiracy count. As legal scholars Ben Wittes and Emma Kohse point out, the doctrine is even older than that. It comes from a 1910 Supreme Court ruling that USDA officials who falsified crop reports could be convicted of conspiracy “for impairing, obstructing, or defeating the lawful function of any department of government.”
Fourteen years later, in a decision written by Chief Justice William Howard Taft, the high court went further, ruling that conspiring to defraud the United States “also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.”
Such language gives Bob Mueller a lot of leeway. How did the Russians “defraud” the United States? Not merely by technical violations of campaign finance laws, but by running a big con on the American people — impersonating Americans and pitting us against each other. In one instance, Russian trolls pretending to be both anti-Islam and pro-Islam were told to demonstrate at the same Houston location at the same time, apparently in hopes of fomenting violence.
This certainly seems a fraud on the United States. But what are we to make of the real American, a registered Democrat, no less, who posted stories in 2016 from the “Denver Guardian,” with extravagant slanders against Hillary Clinton: She pocketed millions of dollars from the Afghanistan War; an FBI agent investigating her emails was found dead – that kind of thing. Vicious stuff, all of it invented. (There is no Denver Guardian, for starters.) The perpetrator apparently did it for money. Should he be prosecuted for conspiring to defraud the country? If so, then what about the utterly specious 2012 ads run by the Obama campaign blaming Mitt Romney for the death of a steelworker’s wife?
That was a form of fraud. It was most definitely a conspiracy – mapped out by Obama’s top campaign aides. I’m not saying federal prosecutors should start parsing campaign rhetoric looking for criminal intent. That would be insane, not to mention unconstitutional. Nor do the Democratic Party computer nerds who fooled around in the Alabama sandbox want any attention from the special prosecutor. But here’s Mueller’s dilemma: If he indicts Russians who targeted Democrats while giving a pass to Americans who used the exact same fraudulent means to harm Republicans, then his investigation no longer looks like it’s about the sanctity of the U.S. election process. It looks like it’s about getting Donald Trump.