ELECTION INTERFERENCE

Donald Trump vigorously denies Russian interference and aid today, but he didn’t always. Indeed, writes Ohlin, vice dean of law at Cornell University, his open call for Russia to ferret out the secrets in Hillary Clinton’s emails constitutes criminal solicitation, “the most salient legal category for understanding the significance of Trump’s behavior.” Solicitation involves asking another party to commit a crime, which differs from a conspiracy; solicitation constitutes a crime whether or not the party being asked actually carries through with it. Similarly, Ohlin argues that the most salient legal category under which to consider the whole program of Russian interference—and now Iranian and Chinese hackers are getting into the game—is the violation of “the American people’s right of self-determination.” Working under that theory requires the author to make his way through a thicket of sometimes contending laws and doctrines, and readers without grounding in the law may feel lost at times. In the end, though, Ohlin draws fine distinctions between self-determination and sovereignty, with legal implications for both. He also considers electoral interference by means of manipulating social media and other cyberattacks to be a virtual declaration of war, “thus making the election interference an opening salvo in an armed conflict.” Ohlin argues that Congress should address the issue of foreign involvement in elections by “explicitly criminalizing” it, which may fall afoul of First Amendment and international human rights considerations—to which the author responds that even political speech can be regulated without violating constitutional guarantees. The better course would be for social media platforms to self-regulate, which would “avoid any First Amendment issue because there would be no state action.”

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