Recent developments in the ongoing investigations into Russian meddling in the 2016 elections have raised interesting questions about the obligations of the current President — or any President — in a situation where a foreign government or its agents have interfered with the American political process or used the Internet in other ways to harm the United States. Members of Congress, among others, have argued that the President has a constitutional duty to protect the United States against such hostile actions, and that the alleged Russian interference was an “act of war.” Debate over these questions is political in nature, and properly so, but the issues are genuinely constitutional as well. Constitutional lawyers have our role to play in the discussion.
The Duty to Repel Attacks
I’m quite sure the President has a constitutional duty to protect the Republic from external threats, including cyber-attack: the pages of the United States Reports contain many references to what the Supreme Court described in one case as the “‘central’ Presidential domains [of] foreign policy and national security, in which the President [has a] singularly vital mandate.” As John Marshall pointed out in a famous speech in 1800, the President “holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation, is to be performed through him.” By the nation’s “force,” Marshall had in mind muskets and frigates, but in the twenty-first century, national security depends just as surely on the nation’s capabilities in cyberspace.
The centrality of the electoral process to our democracy makes the duty to defend the Republic a particularly grave one when it appears that a foreign power may have sought — and may try again — to influence our decisions about who our leaders will be. I believe that debate should start with the premise that the President has a duty — but that is the beginning of the discussion, not its conclusion.
What the President should do to carry out his duty in any particular situation, including the present one, depends on a slew of variables: the nature of the attack, how confident the executive is that it knows the ultimate responsible party (and, at least sometimes, how easily it can demonstrate who that responsible party is to national and international public opinion), what the President’s diplomatic and operational options are, and what the President is legally authorized to do. I don’t have enough information or expertise to speak to most of these factors, but we can identify some important constitutional guideposts without knowing all of the specific facts.
If the alleged Russian actions were constitutionally the equivalent of Pearl Harbor, or of a nuclear strike against an American target, Article II of the Constitution would of its own force authorize and require the President to take vigorous and effective action in response. That much has always been clear, beginning with the Philadelphia framers’ decision, as James Madison recorded it, to articulate Congress’s power in terms of declaring rather than making war: “Mr. MADISON and Mr. GERRY moved to insert ‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel sudden attacks.”
But serious as the most far-reaching allegations are, nothing I have seen suggests to me that it would be appropriate for the President to treat the Russian government’s interference as rising to this level of constitutional significance. If I’m right about that, the President would have significant leeway to decide the appropriate means of countering the threat. The administration’s lawyers are under a professional and intellectual obligation of their own to take into account what Congress has authorized the executive branch to do, as well what it has prohibited, in advising the President on what his lawful options are in carrying out his constitutional duty to protect this nation.
The President’s duty, I want to emphasize, does not carry with it plenary authority to disregard the acts of the Article I legislative branch, which is under a constitutional duty parallel to his to legislate, as the Constitution puts it, “for the common defence.” The great Youngstown decision proved as much by blocking President Truman from acting outside congressional authorization even during the Korean War. Advisors other than lawyers would have to detail what the President’s options are within the bounds established by the President’s robust, but not unlimited, Article II powers and all relevant statutes. And in the final analysis, the President would doubtless have to choose among lawful options, all with advantages and disadvantages.
Congress’s Responsibility and the President’s Duty to Inform Congress
Remembering that Congress, no less than the President, has constitutional duties and constitutional powers with respect to a cyber-attack on the 2016 election answers the doubts sometimes raised as to the necessity of providing Congress with the information which the executive possesses about the Russians’ behavior.
Article II mandates that the President “shall from time to time give to the Congress Information of the State of the Union.” It is difficult to imagine an issue more relevant to the national legislature than foreign interference with the national political process, and the President’s duty is hardly satisfied by his delivery of a ceremonial address once a year. Long-established principles about executive privilege and state secrets would safeguard legitimate executive concerns about sources and methods of information gathering — but the duty to inform Congress remains.
Is an ‘Act of War’ Necessary?
Some of the public debate up to this point seems to revolve around whether the alleged Russian actions were “acts of war.” From the perspective of a constitutional lawyer, this expression does no useful analytical work. Insurance policies, and statutes addressing issues of liability and insurance, use the term. But the only relevant statutory reference of which I am aware is in a 1992 law that defines an “act of war” for its purposes as “any act occurring in the course of – (A) declared war; (B) armed conflict, whether or not war has been declared, between two or more nations; or (C) armed conflict between military forces of any origin.”
By that definition, the Russian meddling was plainly not an “act of war.” The real point, however, is that “act of war” is not itself a technical term in constitutional law or used as such in the small number of Supreme Court opinions where it appears.
Litigants sometimes use those words as colorful descriptors. For example, in Hamdan v. Rumsfeld, Justice Stevens quoted the Solicitor General’s characterization of the 9/11 attacks as “an act of war” that “‘triggered a[n Article II] right to deploy military forces abroad to defend the United States by combating al Qaeda.’” But the constitutional trigger was not the existence of an “act of war”; rather, it was the fact that 9/11 was unmistakably a practical example of the “sudden attacks” that the Philadelphia framers meant to leave the executive the power to counter. I think we get nowhere, in discussing how the President should execute his constitutional duty to defend the Republic, by employing the portentous but legally empty words “act of war.”
Conclusion
To summarize: the answer to the question whether the President has a constitutional duty to protect the United States and its electoral processes from what appears to have been deliberate intervention by persons acting on behalf of the Russian government is both simple and very difficult. Yes, the President has a clear duty, but his duty is to take whatever actions he deems prudent and is advised are lawful. Deciding what those actions are is not a simple matter at all.
To say this is not to imply in the least that it is impossible or improper to criticize this President’s decisions about how to respond to the emerging picture of Russian meddling in our politics. It does mean, however, that whether the President is fulfilling his duty in the matter ultimately depends on whether he is reaching his decisions conscientiously and whether his choices are wise — and the same goes for Congress. I agree with some of the criticisms of how the President has responded so far, but that is my judgment as a citizen, not a professional opinion on a question of law.