Analysis: Can the Senate Use “Russian Descent” As an Investigatory Criteria?

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On October 4, 2017, in Washington, D.C., Senate Intelligence Committee Chairman Richard Burr (R-N.C.) and committee Vice Chair Mark Warner (D-Va.) hold a news conference on the status of the committee’s inquiry into Russian interference in the 2016 presidential election. Chip Somodevilla/Getty Images.

By Michael Tracey

While any “request” issued by a powerful Senate committee carries certain weight—it signifies that a person who received the “request” is of significant enough interest that they’d garnered the committee’s attention—as of now, the one reported on Wednesday by TYT doesn’t yet carry formal legal weight. Chuck Johnson, the right-wing media provocateur, initially received a July 27, 2017, letter from Sens. Richard Burr (R-N.C.) and Mark Warner (D-Va.) requesting that he hand over materials relevant to the Senate Select Committee on Intelligence’s investigation into alleged Russian interference in the American political system.

The committee has subpoena power, and may yet invoke it, but at present, their request to Johnson is not obligatory. He faces no legal repercussions for noncompliance (he insists he will not comply with the request). As such, the committee’s adoption of an expansive definition of what it considers pertinent information may not yet be challengeable in the courts. In the letter, Johnson is requested to turn over all communications with “Russian persons” in which their conversation dealt in any capacity with cybersecurity, hacking, or the U.S. electoral process. It’s an exceptionally broad request, and Johnson’s attorney asked for clarification on the definition of “Russian person.” As TYT reported, SSCI Minority Counsel April Doss replied on December 19 that “Russian persons” should be taken to mean “persons that Mr. Johnson knows or has reason to believe are of Russian nationality or descent.”

Doss’s invocation of an ethnic characteristic—“Russian descent”—raises some charged moral and political questions; using that as the basis for a Senate inquest is, at the very least, notable. But as of now, it doesn’t necessarily raise any firm legal questions, according to David Cole, the national legal director for the ACLU. “If they turn it into a subpoena, there could well be issues about its breadth and the like,” Cole told me. “But it’s not a subpoena at this point.”

Should the SSCI request morph into a subpoena, avenues for legal challenge might arise; Johnson’s attorney, Robert Barnes, says he intends to explore any number of them in that eventuality. But in the interim, Johnson is limited in what he can contest.

“If you think about a police officer who is investigating a crime in which the [perpetrator] was alleged to be a white woman, he could go out and seek voluntary information about white women in the vicinity or in the neighborhood,” Cole noted.

It should be said that Johnson is not any kind of sympathetic character; he is an agitator on behalf of various right-wing causes and espouses all manner of unseemly views, not least support for President Trump. But Johnson’s personal character or political orientation isn’t necessarily what’s at issue. At issue is what was explicitly stated by April Doss: that an ethnic characteristic has been adopted by an extremely powerful Senate committee as a criterion for its investigative inquest. It’s certainly not difficult to imagine that if one were to substitute an ethnic characteristic other than “Russian” in this formulation, an avalanche of outrage would (rightly) follow.

Given how expansive the scope of the Senate’s investigation is—again, the committee seeks records of Johnson’s interactions with all “Russian persons” relating to “cyber intrusion, hacking, or other activities that related in any way to the political election process in the U.S.”—the logistics of satisfactorily responding could be complicated.

It would not be unusual for investigators to cast a wide net—but how wide is reasonable? How, given their use of “Russian descent” as an investigatory criterion, would one be expected to go about assessing whether a person is of Russian descent? Genealogy tests? What if a subject’s “reason to believe” that a person has Russian ancestry proves false? For instance, the subject’s reason for this belief may be that a person they interacted with spoke with a Russian accent. But the person may have instead been speaking a similarly-sounding Slavic language like Ukranian or Belarusian—not an uncommon mixup. What then?

Because the inquiry is still in its voluntary stage, these questions have yet to be litigated.

“I think whether it’s problematic or not would depend on what kind of information the committee is predicating its request on,” Cole said. “So if they have reason to believe that this guy was involved with some Russian individuals who may have been working on behalf of the Russian government to interfere in the election, then I think they can ask questions about that.”

During the 2016 presidential campaign, Johnson mounted an unsuccessful effort to obtain the elusive 33,000 emails that Hillary Clinton deleted from her private email server. But the SSCI’s broad mandate coupled with the opacity of its functions means that no information which might have served as the impetus for its request has yet been produced. (Sen. Warner’s office declined to comment on behalf of the committee for TYT’s original story.) If the committee chooses to escalate its tactics with a subpoena, then more light might eventually be shone. But as yet, Johnson is in a political bind—not necessarily a legal one.

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