This topic received some coverage in September 2018 when the Executive Order was signed, but given events of the past two months – and the outcome of the election — the issue may become explosive in the weeks ahead.
On September 12, 2019, President Trump signed Executive Order 13848 titled “Imposing Certain Sanctions in the Event of Foreign Interference in a United States Election.” Looking at the issue in retrospect at the time the EO was put into place, most would have focused attention on the Russians or Iranians in terms of who the EO might have been aimed at.
But now, given Joe Biden’s nomination as the Democrat candidate for President, the well-established history of business and financial connections between the Biden Family and the Communist Chinese Party, and the aggressive posture of the Trump Administration in responding to Chinese business and technology espionage, the focus of this EO is going to focus squarely on any Chinese efforts to influence – or corrupt – the recent Presidential election.
With that backdrop, let’s consider for a moment what EO 13484 requires over the course of the next 75 days.
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.
The election was on November 3, and Dec. 18 will be 45 days after the election.
John Ratcliffe is the DNI and it has been reported in recent days that Ratcliffe is in a fight with the Intelligence Community over declassifying certain information based on the supposed objections that doing so will expose “sources and methods.” I think this fight is about what Ratcliffe is planning to disclose in the report required by the EO.
The Report will “name names” in terms of the foreign governments and actors involved, and the report shall be shared with several members of the Cabinet – the Trump Cabinet on its way out the door (maybe).
But a report is not all that is required under the EO.
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.
The significance here is that the Report of the Attorney General and Director of Homeland Security on the extent to which foreign interference may have impacted the election will be due February 1 – two weeks into the new Administration.
But the majority of the work on that report will be done by the staff of the outgoing administration.
If there is a Biden Administration, and the Trump Administration determines there was foreign election interference – and numerous staff members and cabinet officials will possess that information — it becomes politically difficult for Biden to rescind the EO or to not produce the second report contemplated by the EO. Certainly, the GOP leadership in the Senate and on the Senate Intelligence and Homeland Security Committees will want a Biden Administration to produce such a report.
It is difficult at this point to know what the substance of any such report will ultimately consist of. There is certainly plenty of “smoke” on the topic of foreign government interference. Whether the DNI supports the allegations that are coming from the Trump Campaign legal team remains to be seen.
But Pres. Trump is about to make good on one commitment he made four years ago in this respect — if he is leaving office, he’s not going to allow the swamp to maintain its secrets about “arrangements” that exist between the swamp and certain foreign adversaries.
Whether the two issues become entangled over the next 9 weeks could rock Washington like nothing in recent memory.