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Congressional Investigations — Not Just Special Counsels — Strengthen Our Democracy

Special Counsels just assess possible criminal actions and are not public. And they take much longer than congressional probes. Congress can — and must — continue its inquiry.

August 14, 2017

Cross-posted from The Hill

The current investigations into Russian involvement in the 2016 U.S. presidential elections aim to shine daylight on crucial issues for our democracy. Oddly, some in Congress have called for curtailing key aspects of their own investigations until Special Counsel Robert Mueller’s investigation has concluded, threatening a long-standing congressional responsibility to conduct oversight on behalf of the American people.

Just last week, the Chairman of the House Judiciary Committee, Bob Goodlatte, said that "Until Mr. Mueller’s investigation is complete, it is redundant for the House of Representatives to engage in fact-gathering on many of the same issues he is investigating.” In June, Congressman Trey Gowdy, Chairman of the House Oversight and Government Reform Committee, and Majority Leader John Cornyn, the second-ranking Senate Republican,expressed similar views.

But we disagree.

Although critically important, investigations led by a Special Counsel are limited in scope to possible criminal actions, are not public, and often take much longer than congressional investigations. Also, at the end of the day, the president could find ways to interfere with the Special Counsel’s investigation or it could be compromised in other ways by the Justice Department that is controlled by the president’s appointees.

Congress, on the other hand, has the Constitutional mandate to investigate broader issues than that of a law enforcement probe.  When properly conducted, congressional oversight is essential to keeping the executive branch accountable, and to ensuring that our democracy’s system of checks and balances works.

So far, both the Senate Intelligence and Judiciary Committees have correctly resisted calls to curtail their investigations in Russian election meddling while the independent Special Counsel proceeds. These two committees are undertaking a largely bipartisan examination — they are holding hearings, demanding documents, and interviewing witnesses as part of a rigorous investigation.

As part of this investigation, Congress needs to provide the public with the facts, and then grapple with the underlying issues. Unlike a special prosecutor, Congress can explore not only whether the law was broken but also whether possible ethical violations require new laws. For example, Congressional investigators can ask how to strengthen the Foreign Agent Registration Act.  They could also determine steps to increase protections for the integrity of elections.

Many past Congressional investigations led to reforms that would not have been enacted had the inquiries been limited to criminal law enforcement. For example, the Watergate Committee’s work led to the passage of landmark government reforms such as improved campaign finance laws, a strengthened Freedom of Information Act, the Ethics in Government Act, and the Inspectors General Act. The Senate Indian Affairs Committee conducted its investigation into the Jack Abramoff lobbying and corruption scandal in parallel with numerous criminal prosecutions, resulting not only in nearly 20 people pleading guilty or being convicted, but also in the passage of a number of lobbying disclosure and ethics rules and the creation of the Office of Congressional Ethics.

Are there too many cooks in the kitchen?  That is a manageable problem as well. Experts at a July 11 hearing before a Senate Judiciary subcommittee, including those with Iran-Contra and Watergate experience, described the legal and procedural approaches to ensure that different investigations do not step on each other’s toes. Communication between Mueller and Congress is essential.

Similarly, the different House and Senate players should coordinate among themselves, as they have successfully many times in the past. For example, when the Iran-Contra investigations launched in 1987, the House and Senate came together and established a special joint committee to examine allegations that senior officials in the Reagan administration secretly facilitated arms sales to Iran in violation of an arms embargo.

This bipartisan, bicameral examination engaged many members from key congressional committee, with differing points of view and expertise.  Ultimately, the investigative work of Congress resulted in important reforms, including government oversight over covert action.

Clearly, concerns about Russian interference with the 2016 presidential election, which bear on the integrity of our democratic institutions, demand congressional attention. Criminal investigations examine the past. History tells us that Congress can — and must — examine a broader set of issues to craft solutions that look to the future.

(Photo: Flickr/Thomas Hawk)