The President’s Election-Interference Order: A Needed First Step

President Trump issued Executive Order 13848 on Sept. 12 declaring election interference a national emergency. The order also sets up a protocol for applying sanctions to persons who conduct cyberattacks against the electoral system or engage in disinformation. You can find comprehensive analysis of the order by Ed Stein here.

While this latest directive is a welcome addition to the United States’ arsenal of responses to further election interference, are the sanctions it contains capable of deterring adversaries?

The administration deserves praise for issuing this order; it places the administration on the side of protecting the United States over appeasing our adversaries. And while the document restates Trump’s frequent critique of the focus on election interference—that “there has been no evidence of a foreign power altering the outcome or vote tabulation in any United States election”—it also seems to recognize that whether or not an attack is successful, it still deserves a response. Given Trump’s equivocation this summer at the Helsinki summit — where he seemed to side with Russian President Vladimir Putin’s denial of interference over the findings of the U.S. intelligence community—this Order stands in contrast to any squishiness by taking a clear stand against our adversaries.

Despite the change in course from this summer’s summit, the order has received mixed reviews. Legislators are generally praising the administration for responding to intelligence reports that there is continued foreign interference and meddling in the run-up to the midterm elections (with intelligence agencies specifically naming Russia as the adversary intent on interfering). However, legislators seem to question whether the provisions in the directive are strong enough to actually deter Russia or others from further interference.

Deterrence is about changing an adversary’s calculations by showing a willingness to execute a response that’s even greater than the harm the adversary intends to carry out. In the nuclear context, that meant declaring a willingness to use nuclear weapons in the case of a large-scale conventional attack against us or our allies. In the context of sanctions, one would assume that a declared response—one that would deter a state-sponsored cyberattack or disinformation campaign—would be one that had the potential to inflict enough financial pressure on the state to prevent it from engaging. Importantly, for a deterrent to be effective, the adversary should have the reasonable expectation that any threat will be followed by action.

The executive is not the only branch of government working on sanctions; the Senate is in the midst of deliberating on how to develop sanctions in a way that would meet these deterrence standards. Stein wrote a great overview of the Russia-focused bipartisan Defending Elections from Threats by Establishing Redlines (Deter) Act. While the new directive mandates a review of potential interference post-election and a process for recommending sanctions, blocking property and reaffirming Obama-era sanctions on election interference, the Deter Act mandates much stronger automatic sanctions, including applying sanctions to at least three major Russian financial institutions, energy companies, the defense and intelligence sector and other state-owned entities, as well as applying sanctions to oligarchs. In effect, the act applies economic sanctions in a way that could inflict serious pain on the Russian government.

In addition to the Deter Act, a bipartisan group of senators have introduced the Defending American Security from Kremlin Aggression Act of 2018 (DASKAA). According to Sen. Lindsey Graham, a sponsor, the purpose of that bill is to “impose crushing sanctions and other measures against Putin's Russia until he ceases and desists meddling in the U.S. electoral process, halts cyber-attacks on U.S. infrastructure, removes Russia from Ukraine, and ceases efforts to create chaos in Syria.”

DASKAA is a more holistic response to the Russia threat than the Deter Act. It touches on everything from affirming U.S. participation in and the strengthening of NATO to prohibiting any recognition of Crimea as part of Russia and reporting on Russian chemical-weapons use. Like the Deter Act, it contains a prodigious list of sanctions—including those on oligarchs and the Russian energy sector—and would prohibit U.S. persons from buying Russian sovereign debt, though these would be imposed upon passage regardless of the state’s continued interference (making the sanctions primarily premised on punishment for past acts, not deterrence of future acts). In order to prevent future election interference, DASKAA also adds to the Computer Fraud and Abuse Act by establishing penalties for impairing computers used for “critical infrastructure,” defined to include “voter registration databases, voting machines, and other communications systems that manage the election process or report and display results on behalf of State and local governments.” By designating computers used for elections as “protected computers,” it also updates §1030(e) so that interfering in both the voting system and in federal elections receives the same punishment.

Trump has already been critical of any sort of legislation that seems to force his hand. For instance, his signing statement for the 2018 National Defense Authorization Act was primarily a critique of all the ways the law seemed to restrict his authority. Similarly, the signing statement for the Countering America’s Adversaries Through Sanctions Act contained similar language haranguing the bill for encroaching on executive authority. Yet despite Republican majorities in the House and Senate, Congress has been willing to push back against the administration’s concerns when national security is involved. Indeed, the Deter Act and DASKAA would both put pressure on the administration to impose sanctions that it may not support. But either bill would also impose sanctions that would be more likely to inflict pain on Russia than if the administration were to act alone—hopefully in ways that would deter future bad acts.

There is no guarantee that either piece of legislation will make it into law, so the president’s directive provides a necessary bridge to showing Russia (and others) that there will be a response in the case of electoral interference. Yet this order in no way means that Congress should end its work on determining the best course for deterring bad actors. Executive orders are temporary: Trump or a future president could choose to rescind this one at any time. Passing legislation will make it clear to our any adversary that the U.S. government will be legally obligated to respond to attempts to interfere in our democratic process.