[EL] ELB News and Commentary 9/23/19

Mon Sep 23 08:34:19 PDT 2019

“As Trump Confirms He Discussed Biden With Ukraine, Pressure to Impeach Builds”<https://electionlawblog.org/?p=107418>
Posted on September 23, 2019 8:31 am<https://electionlawblog.org/?p=107418> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/09/22/us/politics/trump-impeachment-whistle-blower.html>

President Trump acknowledged on Sunday that he raised corruption accusations against former Vice President Joseph R. Biden Jr. during a phone call with Ukraine’s leader, a stunning admission as pressure mounted on Democrats to impeach Mr. Trump over allegations he leaned on a foreign government to help damage a political rival.

In public and in private, many Democrats said the evidence that has emerged in recent days indicating that Mr. Trump pushed the Ukrainian government to investigate Mr. Biden, and his administration’s stonewalling of attempts by Congress to learn more, were changing their calculations about whether to charge him with articles of impeachment.

Yesterday at Slate I wrote<https://slate.com/news-and-politics/2019/09/trump-ukraine-campaign-finance-crime.html> about the campaign finance implications of the Ukraine allegations.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

“Massive ‘I Love America’ Facebook page, pushing pro-Trump propaganda, is run by Ukrainians”<https://electionlawblog.org/?p=107416>
Posted on September 23, 2019 8:24 am<https://electionlawblog.org/?p=107416> by Rick Hasen<https://electionlawblog.org/?author=3>

Judd Legum<https://popular.info/p/massive-i-love-america-facebook-page>:

The “I Love America” Facebook page boasts 1.1 million fans, with viral content that reaches more Facebook users than some of the largest media outlets in the United States. A typical post is a celebration of the U.S. military and patriotism.

There are lots of references to “our country” and “our military.” Not mentioned is that the page is managed by ten people based in Ukraine. (There is also one manager from Kazakhstan, one from France, and one from the United States.) A website that was previously linked in the “About” section of the “I Love America” page is registered to Andriy Zyuzikov, an online strategist from the Ukrainian city of Odessa.

The “I Love America” page regularly recycles memes used by the Internet Research Agency, the Russian entity that set up phony Facebook pages to benefit Trump in advance of the 2016 election.

While “I Love America,” which was established in March 2017, focuses on patriotism, in recent weeks it has used its extraordinary reach to push pro-Trump propaganda.

These pro-Trump memes are cross-posted from several explicitly pro-Trump pages, with names like “God bless Donald and Melania Trump and God bless America.”  All of these pages, which were created in the last few months, are managed exclusively by people based out of Ukraine.

But the “I Love America” page is only the tip of the iceberg. There is a complex network of Facebook pages, all managed by people in Ukraine, that collect large audiences by posting memes about patriotism, Jesus, and cute dogs. These pages are now being used to funnel large audiences to pro-Trump propaganda. The pages have also joined political Facebook groups and are active on Instagram, which is owned by Facebook.
Facebook promised this would not happen again. “In 2016, we were not prepared for the coordinated information operations we now regularly face. But we have learned a lot since then and have developed sophisticated systems that combine technology and people to prevent election interference on our services,” Facebook CEO Mark Zuckerberg wrote<https://www.facebook.com/notes/mark-zuckerberg/preparing-for-elections/10156300047606634/> in 2018. …

While there is no indication that the Ukrainian network of Facebook pages is backed by any government, they are exposing Americans to a flood of inauthentic and manipulative content related to the 2020 election. …

A Facebook spokesperson told Popular Information that the company does not believe any of the Facebook pages discussed in this article violate its policies, including the policy against “coordinated inauthentic behavior.” Facebook defines<https://newsroom.fb.com/news/2018/12/inside-feed-coordinated-inauthentic-behavior/> “coordinated inauthentic behavior” as “when groups of pages or people work together to mislead others about who they are or what they are doing.”
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Posted in campaigns<https://electionlawblog.org/?cat=59>, social media and social protests<https://electionlawblog.org/?cat=58>

“Was the Democratic Nomination Rigged? A Reexamination of the Clinton-Sanders Presidential Race”<https://electionlawblog.org/?p=107414>
Posted on September 23, 2019 8:16 am<https://electionlawblog.org/?p=107414> by Rick Hasen<https://electionlawblog.org/?author=3>

Tony Gaughan has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3443916> on SSRN (forthcoming, University of Florida Journal of Law and Public Policy). Here is the abstract:

This article examines one of the lingering controversies of the 2016 presidential race: whether the Democratic Party’s leaders corrupted the election process to ensure that Hillary Clinton secured the party’s presidential nomination. In May 2016, Bernie Sanders complained that his path to the nomination was blocked by a “rigged system” of superdelegates, party officials free to vote for any candidate at the presidential convention. In November 2017, former DNC Chair Donna Brazile revealed the existence of a fundraising agreement between the Clinton campaign and the national party that pre-dated the primary campaign. Amid the uproar over Brazile’s book, Senator Elizabeth Warren, a candidate for the Democratic nomination in 2020, asserted that the 2016 Democratic primary was “rigged” in Clinton’s favor.

The controversy over the 2016 race raised fundamental questions about the health of the nation’s democratic institutions. For American voters, no decision is more consequential than the selection of the president. As both commander-in-chief of the armed forces and chief executive, the president exercises more power than any other single individual in the American system of government. The question of whether the Democratic Party’s senior leadership subverted the nomination process thus bears directly on the integrity of the presidential election system. Do ordinary voters choose the party nominee, or do elites secretly control the process?

This article makes three central points. First, it contends that the overwhelming weight of evidence makes clear the 2016 Democratic nomination process was not rigged in favor of Hillary Clinton. Second, this article argues that the Democratic Party rules and state election laws actually hurt Clinton and benefited Sanders. Third, the article concludes that the controversy over the Democratic nomination race reflects a broader, bipartisan decline in public confidence in the integrity of American elections.
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Posted in primaries<https://electionlawblog.org/?cat=32>

“Trump’s Ukraine Gambit Could Be Another Campaign Finance Crime; Unfortunately, Robert Mueller may have given the president the green light to solicit foreign interference again”<https://electionlawblog.org/?p=107412>
Posted on September 22, 2019 2:53 pm<https://electionlawblog.org/?p=107412> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2019/09/trump-ukraine-campaign-finance-crime.html> for Slate. It begins:

President Donald Trump may well have committed a new campaign finance crime if he, as reported, pressured Ukraine into providing dirt on a political rival, former Vice President Joe Biden, and Biden’s son Hunter. Unfortunately, Special Counsel Robert Mueller may have stymied any future DOJ’s ability to enforce that law when he gave Trump’s son, Donald Trump, Jr. a pass earlier this year on similar conduct. If Trump has again sought foreign assistance in an election, Mueller’s decision not to enforce the law last time around is partly to blame for the president acting with total impunity along with an accompanying decay of democratic norms.

It concludes:

And now here we are in the 2020 election season with Trump and Ukraine. Thinking of the four concerns raised by Mueller, the first three elements do not save the president in this case. As to willfulness, there’s no way the president does not know that the solicitation of foreign opposition research constitutes a crime following the Mueller probe. He was even pressed on this<https://twitter.com/evanmcmurry/status/1138936855435591681?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1138936855435591681&ref_url=http%3A%2F%2Felectionlawblog.org%2F> by George Stephanopoulos last year and said he might accept such research again, which resulted in the head of the Federal Election Commission releasing a statement<https://www.vox.com/2019/6/14/18677631/trump-campaign-finance-law-fec-illegal-fbi> to once again clarify that, yes, this would be a crime. We will likely have a recording and a transcript of the Ukraine call, so evidence of the solicitation itself will be easy to find if it exists. Third, Biden is the leading Democratic presidential candidate who has a good chance of running directly against Trump in the 2020 election; of course any “dirt” on Biden would be worth more than $25,000.

So this leaves the First Amendment defense. Thanks to Mueller, Trump can plausibly claim he has a First Amendment right to go to a foreign government to solicit—even potentially extort—valuable information against political opponents. If the First Amendment protected this conduct from Trump, why even hold elections?

Ultimately, the best legal argument is that Trump committed a campaign finance crime if he solicited dirt on Biden and his son, as appears to be the case, regardless of whether there was any quid pro quo. But Mueller, despite expressing concern<https://www.usatoday.com/story/news/politics/2019/07/25/robert-mueller-warned-2020-russian-election-interference-what-happened-2016/1827616001/> about potential foreign interference in the 2020 elections in his recent testimony before the House Judiciary Committee, may have given Trump a green light through his own report.

Karl Marx once wrote that history repeats itself, first as tragedy then as farce. In this case, I think it is the opposite. The Trump Tower meeting was a farce. The president’s brazen actions now, if proven, will be a tragedy for American democracy.

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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>

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