What are we to make of the indictment of a group of 13 Russian nationals for unlawful interference in the U.S. political system? Two things were made clear in Deputy Attorney General Rod Rosenstein’s press conference on the indictment, an indictment flowing from Special Counsel Robert Mueller’s investigation.
First, the deputy attorney general declared that there was no "knowing participation" in the alleged schemes by any Americans, which means, of course, that there is still no evidence of collusion between Donald Trump and the Russians — the ostensible reason for the appointment of a special prosecutor in the first place.
The White House, which has criticized the Mueller investigation as a "witch hunt," wrongly launched by the disappointed supporters of Mr. Trump’s opponent, Mrs. Clinton, has reason to feel vindicated, as it apparently does.
Equally interesting, however, is a second main point made by Mr. Rosenstein, and that is that there is no evidence suggesting that the Russian meddling in any way influenced the outcome of the election, further indicating that this special counsel investigation may well have been much ado about nothing.
Apparently, the Russians spent a few million dollars in their efforts purportedly to sow discord in our democracy, but that number pales in comparison to the billions expended in the 2016 elections. No wonder there was so little effect.
Little noticed as well, is the fact made clear in the indictment that the Russians were equal opportunity meddlers. They not only sought allegedly to injure Mrs. Clinton’s prospects, but they also engaged in efforts to promote the candidacies of other opponents besides Mr. Trump, most notably Sen. Bernie Sanders, I-Vt., in the primary when he ran against Mrs. Clinton, and Jill Stein, the Green Party candidate, who also may have siphoned some votes from Mrs. Clinton (but might have poached some of the Trump vote as well).
In a splendidly perverse example of such even-handedness, following the election of Mr. Trump, the Russians arranged both pro- and anti-Trump demonstrations, the better to seek to create political chaos.
Given that the defendants indicted are Russian nationals, and given that there is no compulsory extradition of Russian citizens for such crimes committed in the U.S., there is no guarantee that any of the miscreants will ever be brought to justice, casting further doubt about the millions of dollars spent on the special counsel’s investigation.
It's important that our electoral processes be as free from taint as possible, but it is not at all clear that the statutes apparently violated by the Russians are particularly effective, and it would be interesting to know if there were other direct or indirect expenditures by other foreign nationals backing other candidates (Mrs. Clinton, perhaps?). It remains to be seen whether the special counsel will reveal other such nefarious machinations, but there is so far no sign of that.
No one wants popular sovereignty to be hijacked by autocratic regimes pursuing their own twisted interests. Still, when they are this ineffective, one has to ask whether this kind of chicanery is something that is, simply stated, the price of a wide open Internet and prolific social media.
The old liberal adage that the remedy for bad speech is more good speech seems particularly apt, and that, of course, makes one wonder whether campaign finance reform that stifles speech is a good idea. McCain-Feingold did just that, and, mercifully, the U.S. Supreme Court overturned much of that essentially incumbent protection legislation.
There is no assurance that there are not some free speech implications lurking in the statutes under which Mr. Mueller brought his indictments, and it is not completely far-fetched to think that if the Russians chose to raise First Amendment issues (the First Amendment, after all, mandates that Congress shall pass "no law" abridging the freedom of speech) they might be able to gain dismissals, though this is unlikely, especially since it is not at all certain they will make any effort to mount any defense at all.
If, as this indictment seems to suggest, Mr. Mueller’s efforts result in the exoneration of the president from the collusion charges which we are learning were concocted by partisans opposed to him, the special counsel will have performed a signal service. Nevertheless, from what we have seen thus far, it is far from certain that the expenditures of his office are justified, as the crimes he has so far uncovered could all easily have been handled by the Justice Department's normal prosecution process.
Rober Mueller has an enviable reputation as a straight shooter, but he may be firing mostly blanks. Our country has a very sad emerging trend of turning political disagreement into crimes, and we can only hope that the special counsel is especially sensitive to this problem.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). To read more of his reports — Click Here Now.
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