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Every disclosure made by Special Counsel Robert Mueller grows public knowledge. Apparently, though, much of what’s coming to light was already known to Congress—even before the election. That’s a problem, not just because of the effects of GOP lawmakers’ failure to act on knowledge of Russian plots, but for the senators themselves, who appear to have crossed a legal line.
The Washington Post’s Greg Sargent makes a good point about the significance of the most recent indictment on Friday of London-based lawyer Alex van der Zwaan.
Before, we didn’t really have any idea just how extensive a case for Russian meddling was presented to GOP lawmakers. But now we have a much clearer sense of just how elaborate the Russian scheme really was — and a much clearer sense of the degree to which it was aimed at tipping the election to Trump. Indeed, the Mueller indictment doesn’t touch the role of WikiLeaks and the cybertheft aimed at top Democrats, which suggests that it only scratches the surface of what is known.
All this makes it more likely that a credible, detailed case was presented to GOP lawmakers in those meetings — not just of the scope of the Russian plot but also that its aim was to help install Trump in the White House, as part of a “strategic effort to sow discord in the U.S. political system,” as the indictment puts it. And so, Trump’s new spin in the face of the indictment — that it reveals Obama’s failure to act in the face of the threat — also invites more scrutiny of their conduct in the face of that threat.
Why would it matter that Republican legislators knew of Russia’s plan to influence the presidential election and direct its outcome? When representatives and senators take office, they, like other federal employees, take an oath:
An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” This section does not affect other oaths required by law.
Federal employees also have to execute an affidavit to attest that their “acceptance and holding of the office” will not violate a statute barring anyone who “advocates the overthrow of our constitutional form of government” from holding federal or D.C. office. Note “holding of the office;” that’s an ongoing act, implying that senators are accountable not just for what they do before assuming office, but how they behave in office.
Zero in on that “advocates” component.
Advocating for inaction is still advocacy. And advocating for inaction given clear evidence of efforts to interfere with a federal election—that is, usurp the foundation of our constitutional form of government—is a violation of the provision above and the affidavit every senator must execute to hold office.
Good news: senators can be held accountable, at least hypothetically. Violations of the provision that bars individuals from advocating interference with our government are punishable by fines, a prison sentence of up to a year, or both.
Granted, these provisions, 5 U.S.C. 7311 (which prohibits advocating interference with our form of government) and 18 U.S.C. 1918 (which criminalized it), grow out of a complicated (read: unsavory) chapter of our history. They’ve been linked to, among other things, an infamously intolerant 1953 executive order—rescinded by Obama in 2017—and have mostly been enforced in the context of strikes. But these provisions refer to “Loyalty and striking,” 5 U.S.C. 7311, and “Disloyalty and asserting the right to strike,” 18 U.S.C. 1918.
It’d hardly have been necessary to specify the loyalty component if the law was to be limited to striking. Nor would it make sense to ask someone to vouch that he’s not striking to assume office. Moreover, the law that these provisions codify is an act “[t]o prohibit the employment by the Government of the United States of persons who are disloyal or who participate in or assert the right to strike against the Government of the United States, and for other purposes.”
The legislative legacies of the Red Scare may end up as critical mechanisms for combatting Russian influence after all.