Solicitation of foreign interference in an election represents a betrayal of public trust because it threatens to undermine the people’s right of self-determination – a foundational norm of our constitutional order. Section 1 of the chapter focuses on candidate Trump’s solicitation of Russian email hacking during his speech in Florida in July of 2016 – a speech that set the tone for much of what was to come during the Trump presidency. Likewise, Section 2 focuses on an even more daring solicitation: President Trump’s solicitation of interference from Ukraine during a call with its President, Volodymyr Zelensky. Section 3 looks at the legal status of the domestic norm against soliciting foreign interference. This chapter argues that, for the removal of all doubt, Congress should pass a new statute criminalizing the solicitation of foreign involvement in elections. Section 4 responds to the argument that such a statute could not be applied against the President because doing so would conflict with the President’s constitutional authority to conduct foreign relations. Finally, Section 5 examines the ultimate remedy of impeachment as a tool for sanctioning a President who solicits foreign involvement in an election.

The goal of this chapter is to connect the existing prohibitions on foreign participation in elections, that is, to demonstrate that the familiar regulations – prohibitions on foreign voting and spending, as well as registration statutes – should be viewed as methods to protect the collective entity’s exercise of its right of self-determination. Then, once these regulations are understood in this light, a conceptual space opens up to ask whether additional boundary regulations might be enacted in order to secure electoral integrity in the face of foreign election interference. Specifically, this chapter will discuss transparency regimes that might help identify electioneering that originates from foreign sources. The existing regulations target non-citizen voting and foreign spending, but as the Special Counsel indictment against the IRA demonstrated, it is often hard to enforce these regulations against foreign actors located outside the United States. For this reason, it is important to consider other methods of signaling to the public that election speech, such as social media posts, have originated from outside the polity.

The best antidote to the problem of foreign election interference is sunshine – inform the public about the nature and content of the foreign election interference. Criminal prosecutions play an important role in disclosing information to the public, as one part of a larger strategy of depriving foreign election interference of its effectiveness. This chapter focuses on the role that criminal prosecutions played during the Mueller investigation into Russian interference and how similar criminal investigations might be harnessed as a general response to election interference. Section 1 discusses how criminal investigations can help to keep the public informed about critical social problems – and the limitations of using the criminal justice system as a disclosure and transparency regime. Section 2 then analyzes the missteps made by the Obama Administration in failing to use criminal investigations to provide meaningful disclosure to the public about the scope of Russian information operations conducted over social media platforms. Section 3 focuses on recent changes to the Justice Department policies regarding disclosure of foreign influence operations. Finally, Section 4 looks at structural factors in the intelligence community to understand that community’s hesitation about relying on the criminal justice system, and how this reluctance might be overcome.

Far from an isolated political and cultural moment, foreign election interference appears to be a new feature of statecraft. Its ubiquity might lead some to a state of resignation – to accept it as an established element of international relations and not something that international law can regulate or extinguish. This would be a mistake. There are many international behaviors that are inevitable: war is one example. But the ubiquity of the phenomenon is not a good reason to forgo regulation. International law should recognize the distinctive harm of election interference, just as it recognizes the distinctive harm of armed conflict and seeks to reduce the number and the intensity of military conflicts. So too with election interference. International law (and domestic law) should seek to reduce the number of interferences and mitigate their impact.

The concepts of sovereignty and nonintervention stand at the heart of the election interference discourse, but they are also a substantial shortcoming of that discourse. The scholarly literature needs to think more creatively about legal doctrines that can analyze election interference in an intuitive and compelling way. The present chapter argues that the answer lies in the long-ignored right of self-determination. Section 1 explains the right of self-determination and its undeniable status as a binding right under international law. Section 2 explains why election interference violates self-determination. Section 3 answers an obvious question: If self-determination is the key to understanding election interference, why have international lawyers so assiduously avoided this powerful legal category? Finally, Section 4 considers several objections to the self-determination framework, namely that: (i) self-determination applies before the creation of statehood but not after; (ii) there is insufficient state practice or opinio juris of states objecting to election interference on grounds of self-determination; (iii) election interference cannot be illegal under international law because so many states have engaged in it; and (iv) the right of self-determination might not apply when a state acts extraterritorially, as Russia did when it intervened in U.S. elections.

Although election interference is not new, Russia’s social media strategy for election interference in the 2016 election represented a new form of interference in the political affairs of the United States. The advent of social media electioneering raised a number of important political questions. While political commentators were debating these questions, international lawyers were engaged in a parallel conversation, one that was more technical but just as consequential: Did Russia’s interference violate international law? Did Russia do something wrong by operating a troll farm to promote divisive rhetoric in the American political landscape? Did the use of cyber technologies turn the Russian interference into an illegal cyber-attack that triggered a right of response, a form of cyber self-defense? International lawyers generally fell into two camps, with one camp viewing the interference as illegal and another camp viewing it as regrettable but probably lawful under existing legal frameworks. But everyone agreed that Russia’s aggressive use of social media technology was a game-changer. This book argues that the “illegal” camp had it right – Russia did violate international law – but that the “illegal camp” had the wrong reasons for reaching this conclusion.

Russian interference in the 2016 election was not an isolated event but was, rather, a cluster of related techniques, each of which will be described in this chapter. There is wide agreement in government and intelligence circles about what happened, though the Trump administration has at times stated contradictory things about whether the interference occurred, or contradictory characterizations of the interference. There was: (1) hacking of email accounts and the public release of information stolen from these accounts; (2) social media campaigns, including paid advertisements on Facebook and postings on Twitter engineered by so-called troll farms; and (3) the infiltration of advocacy organizations such as the National Rifle Association, with the goal of influencing the domestic political landscape. These activities raise two important issues that are analyzed in this chapter. First, are the actors who engage in this interference private actors or state agents, and does it make a difference? Second, based on the methods used, what conclusions can be drawn about Russia’s strategic objectives in interfering in the 2016 elections? These questions must be answered in order to answer the fundamental question, i.e., whether election interference violates international law, and if yes, in what way.

When international lawyers talk about election interference and whether it violates international law, they usually ask whether it violates the sovereignty of the target state. Under this approach, the legal question is whether a foreign state has inappropriately intervened in the domestic affairs of the state holding the election in a way that violates the target state’s sovereignty. This sovereignty-based framework for evaluating election interference is by far the most common approach taken by mainstream international lawyers studying the issue. Although politicians and policy experts often jump to the cyber-war framework, the first reaction among sophisticated international lawyers is to ask whether election interference violates the sovereignty of the state holding the election. As the following sections will demonstrate, however, the sovereignty framework is poorly suited to resolving the case of foreign election interference, for several reasons. The doctrinal requirements for a violation of sovereignty require either a territorial intrusion, the element of coercion, or the usurpation of an inherently governmental function. However, none of these requirements is satisfied by the type of election interference that were at issue in the 2016 election. Election interference violates international law, but sovereignty is the wrong framework for understanding its illegality.

Historically, foreign election interference was accomplished through nondigital means. In today’s world, however, these prosaic forms of interference have been replaced with their digital counterparts: the use of email hacking and fraudulent social media presence to influence the public and consequently interference with an election. Because the method of election interference has shifted to the digital domain, there is a strong temptation to view the legality of election interference through the international legal rules governing cyber-attacks. In other words, some would condemn election interference as illegal under international law because it represents a form of cyber-warfare. Other lawyers and politicians will argue the opposite: that election interference does not violate international law because it does not rise to the level of a cyber-war, as if this is the end of the matter in terms of the legal analysis. What unites these two competing conclusions is the assumption that cyber-warfare is the correct framework for judging the legality of election interference. That assumption is profoundly mistaken. This chapter will explain why the assumption is mistaken and why the cyber-war framework is unhelpful.

This chapter uses the example of social media labeling as a test case for determining whether the First Amendment will be a barrier to implementing legislative solutions for securing election integrity. These solutions would either require or encourage social media tech firms to label political speech that has a foreign origin. To determine if this would be constitutional, this chapter addresses the following questions in sequence. First, are foreigners protected by the First Amendment? Second, if foreigners are not protected by the First Amendment, do Americans have a First Amendment right to receive or consume foreign speech? Third, are labeling and disclosure regimes consistent with the First Amendment, especially since they might compromise the core value of anonymity? Labeling and disclosure are common methods of regulation and are relatively uncontroversial in the commercial context. In contrast, labeling and disclosure regimes in the political context are far more controversial and demand a more searching level of constitutional scrutiny. Finally, the last question is whether international human rights law or European human rights law might impose constraints on social media regulation.

Jens David Ohlin develops from human rights what he calls a theory of ‘expressive retributivism’ for international crimes (and other severe human rights violations). Relying on the jurisprudence of the European Court of Human Rights he argues for a state’s duty to punish international crimes, a duty that is owed to the victims and based on human rights. He states that in the context of international criminal law, even mercy is a human rights violation. Ohlin connects his theory of ‘expressive retributivism’ to the anti-impunity discourse in international criminal law, and argues that, if states do not comply with their duty to punish international crimes, the ICC can step in. The victims’ human right to see their perpetrators punished also explains their role and significance in international criminal procedure.