Russian Hacking: Trump’s Plan B

President-elect Donald Trump has now had a classified briefing from the Director of National Intelligence and the directors of the FBI, CIA, and NSA on the Russian hacking issue, and we have had the chance to read the unclassified version of the report. What can we conclude?

First, the Russians did what the Intelligence Community says they did, namely, attempt to influence the US election through several means, including hacking, releases of information harmful to Mrs. Clinton, and overt propaganda. Why do I “assess this with high confidence,” to use the kind of lingo the intelligence analysts use? The main reason for disbelieving the unclassified report is its silence with respect to information that could reveal intelligence sources and methods. So in other words, if one of President Putin’s advisers had a hidden camera in his jacket pocket that captured audio and video of Mr. Putin and his advisors congratulating each other about their success in hacking the election and then doing a congratulatory Russian folk dance, we should not expect to see that tape, because no doubt it would give Russian counter-intelligence officers hints about the identity of our spy. Nevertheless, Mr. Putin’s American fellow travelers, for example Glenn Greenwald, continue to cast doubt on the report because it does not contain all the evidence that supports its conclusions. Nevertheless, Mr. Trump was saying, before his briefing, that he doubted the hacking had taken place, and he was saying, after the briefing, that the hacking did not influence the election and that the hacking was really the DNC’s fault, because it lacked the outstanding cybersecurity used by the RNC. Does anyone think that Mr. Trump would back away from his previous assertions if the report he received had not made it impossible for him to keep up his uninformed bluster?

Mr. Greenwald, and indeed Mr. Trump, have also suggested that past intelligence failures give us reason to be skeptical of this new report. They’ve pointed particularly to the 2003 fiasco regarding Iraqi weapons of mass destruction. But they’re mischaracterizing the episode. There were intelligence failures before the Iraq war, of course. Director Clapper addressed that point during his recent testimony. But we know from the recent statements of President Bush’s CIA intelligence briefer, Michael Morell, that far from relying on faulty intelligence briefs, the Bush administration was making public statements in support of their wish to go to war that were inconsistent with the CIA’s conclusions. And we know that one of the main proponents of the war, Secretary of Defense Donald Rumsfeld, had intelligence casting serious doubt on the WMD claims that he did not pass along to Secretary of State Colin Powell, who had the unenviable job of trying to sell the WMD case to the UN Security Council. So the story of the Iraq WMD intelligence is at least in large part a story of the administration not listening to the intelligence community.

Second, we do not know the extent to which the hacking influenced the outcome of the election. According to Mr. Trump, “Intelligence stated very strongly there was absolutely no evidence that hacking affected the election results. Voting machines not touched!” But the report says, “We did not make an assessment of the impact that Russian activities had on the outcome of the 2016 election.” So the President-elect is either mistaken or trying to pull the wool over the American people’s eyes. This is particularly so since we now know that the Russian government was the source of some of the Wikileaks materials that Mr. Trump himself repeatedly cited during the campaign! It may be that the Russian efforts had no real impact on the vote; it may be that it had some impact but not a decisive impact; it could be that it was decisive. Nothing in the report speaks to this question one way or the other.

Third, we do know that the hacking was intended to influence the outcome of the election. Why else do it? Or rather, why else do the hacking (all countries try to gather intelligence about their adversaries’ elites) and then release it publicly? This gets at why it has been so difficult for Mr. Trump to face the facts. Allow me to play armchair psychologist. It seems to me that it is very important for Mr. Trump’s image of himself that he alone have the credit for his victory. Any news that suggests that others might have influenced things one way or another is therefore not to be believed. Perhaps more to the point, Mr. Trump must find it threatening to his self-image to think that Russia wanted him to win. Why would Russia favor the candidate who will Make America Great Again and restore our standing in the world? One answer, now discarded, is that there was no Russian hacking. Another answer—a ridiculous answer—is that Russia didn’t want Mr. Trump to win. This was the point of Kellyanne Conway’s remark in a recent interview, which if you think about it is gibberish:

So all of this amounts to a very simple fact, which is that alleged attacks, alleged and aspirations to interfere with our democracy failed. And they failed. And we know that, because Donald Trump won …

Another answer is that Russia is not our adversary but our friend, and the mainstream media and the elites lack Mr. Trump’s discernment and fail to see how friendly, wise, and benevolent Russia’s president and leadership are. That’s where I think we are, and it’s why our European allies are so worried.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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