Foreign interference is a threat to the 2020 elections — presidential interference is, too
Last week, President Trump confirmed what was clear to readers of special counsel Robert Mueller’s report: If a foreign country offered him “dirt” on a Democratic opponent, he would be happy to listen. In the wake of these comments, congressional Democrats are admirably focused on the need to protect the 2020 election from foreign interference. But they should also realize that President Trump doesn’t need foreign help to tilt the electoral playing field in his own favor. His presidential powers offer paths to influencing the election outcome that Congress should also take action to close off.
President Trump’s view that he controls federal law enforcement gives him a particularly potent weapon, since allegations of illegal conduct are a proven way for him to discredit and diminish support for a political opponent. When his supporters regularly chanted “lock her up” during the 2016 election, the president didn’t have the power to turn those words into action. Now, he does. As his supporters have started to spread rumors of alleged wrongdoing by Joe Biden and his son, President Trump has said publicly that it would be “appropriate” for him to discuss a criminal investigation into Biden with Attorney General William Barr. In fact, such a conversation would be far from appropriate and violate his constitutional obligations — but we know President Trump has already called on officials in his administration to launch investigations into Hillary Clinton and other political opponents.
Disinformation is another menacing weapon in an election season. Ever since his own election, President Trump has been particularly eager to spread falsehoods about voter fraud and to question the validity of election results that don’t favor his side. For instance, in 2018, he suggested that supporters should watch the polls to prevent the election from being “stolen.” And it’s not just words. He created an official government task force to investigate these claims, and prosecutors under his watch have been eager to pursue claims of illegal voting. These actions send a message to voters, particularly voters of color: vote at your own risk.
Finally, we may see the president repeat a play from November 2018: invoking a purported “emergency” — last year, it was a “caravan” of asylum seekers — to deploy troops and spark fear among voters whom he has primed to see immigrants as an existential threat to the country. The deployment of large numbers of troops and border patrol officers to the border likely had the added effect (for President Trump, the bonus) of intimidating Latinx voters in border areas and deterring them from going to the polls on Election Day.
These actions borrow directly from the authoritarian playbook that has been followed by leaders like Viktor Orban in Hungary, Recep Tayyip Erdogan in Turkey, and others. In each of these countries, leaders have been able to use their influence over elections to make their countries less democratic. But because the playbook is so well-established, Congress can, and should, strengthen the guardrails that protect our elections from this type of interference.
Congress has an important tool to protect the election. Many of the president’s avenues for manipulating the election depend on the cooperation of other officials in government. Even if President Trump himself is not deterred by the law and his constitutional obligations — and his statements about accepting foreign information suggest he may not be — the threat of criminal prosecution or civil judgments are more likely to deter lower-level officials.
To send a signal to these officials and the public that interference by the president will not be tolerated, Congress should enact legislation to curb the forms of abuse that, based on the president’s track record, appear most likely. First, they should protect political candidates from improper law enforcement activity by requiring that career prosecutors be consulted before major investigative steps are taken with respect to federal political candidates. This requirement is already in place for election-related crimes; it should be expanded to include any criminal activity allegedly committed by a campaign. The Department of Justice should also be required to report information about investigations into political candidates to its internal watchdogs and, where appropriate, to Congress.
Congress should also strengthen prohibitions on voter intimidation and add new prohibitions on deceiving voters about their right to participate in federal elections. Federal law already bars efforts to intimidate voters to prevent them from exercising their right to vote. But Congress can and should clarify that the law covers non-physical threats, including threats of doxxing or the loss of job opportunities. In light of the president’s specific focus on allegations of voter fraud by Latinx voters, Congress should also specifically prohibit immigration officials from being present at polling locations and limit non-emergency immigration enforcement activities around Election Day. And Congress should prohibit intentionally deceiving voters about when they can vote and whether they can vote in order to ensure that disinformation does not keep voters away from the polls.
The 2020 election will be an opportunity for voters to determine whether President Trump deserves a second term. But for elections to be meaningful, every candidate must have a fair opportunity to make their case to the American people. No foreign government can be permitted to put a thumb on the scale. Neither can the president.
Jessica Marsden is Counsel at Protect Democracy.
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