Cross-posted at The Hill.
The appointment of former FBI Director Robert Mueller as special counselto lead the investigation into Russian interference with the 2016 election is good news in a sea of bad. We needed it to restore faith in the investigation’s integrity, which was badly shaken by President Trump’s abrupt firing of FBI Director James Comey.
The main danger now is not that the administration will interfere, but that lawmakers and the public will think a criminal investigation is enough. It never was, and Mueller’s appointment does not change that. A criminal investigation has a narrow purpose. A prosecutor tries to determine whether there is enough evidence to prove beyond a reasonable doubt that a crime occurred. The effort takes place entirely out of the public eye. Generally, citizens learn nothing unless a criminal charge is brought (which is what made Comey’s public comments about the investigation of Hillary Clinton so extraordinary).
The public interest in this case is far broader. Our concern is not just whether Trump’s campaign criminally colluded with Russia — although that is no minor matter. It is also whether Trump’s ties to Russia, a hostile foreign power, affect his willingness or his ability to act in America’s best interests. It would not be illegal, for instance, for Trump to owe enormous sums of money to Russian government-controlled banks or to financiers within Vladmir Putin’s orbit, based on business transactions that happened before he became president. But Americans have a right to know if their president is indebted to the enemy.
Moreover, Russia’s interference with the election raises critical questions that go beyond its own criminal conduct. What systemic vulnerabilities, for instance, with respect to cybersecurity, enabled Russia’s actions? What kinds of reforms would help protect our democratic systems against future meddling? Are there other, as-yet-unknown ways in which Russia attempted to interfere, which should prompt additional defensive measures on our part? A prosecutor will not ask these questions, let alone answer them. Yet it is vital to grapple with these matters to restore public confidence in the integrity of our elections.
Finally, there must be a thorough inquiry into whether Trump tried to influence the Russia investigation by reportedly asking Comey to back off or by firing him after he failed to do so. It is not clear whether Mueller will consider this to fall within his mandate. Even if he does, the president’s actions could have been highly improper without being criminal. This, too, must be the subject of a different investigation — one that takes place in public, as any efforts Trump made to derail the FBI’s work would be, first and foremost, a betrayal of the public trust.
Some of these questions are already being examined by standing committees in Congress; others could be. But that is not sufficient. Standing committees must spread their time and resources across a multitude of policy and oversight issues. The Senate intelligence committee is busy with ongoing assessments of worldwide threats, targeting killing operations, NSA surveillance, and nominations. It simply cannot address the questions raised by Russia’s interference and related matters with the urgency, focus and thoroughness they warrant. Indeed, the panel might view some of those matters — such as Trump’s financial ties to Russia — as falling outside its jurisdiction.
Moreover, standing committees are structured to give greater sway to the majority party. The committee chair wields great power, and members of the majority party outnumber those of the minority. The Senate intelligence committee has an unusual history of bipartisan cooperation, but the Russia investigation could trigger partisan divisions. And the public may not trust the outcome.
We need a bipartisan investigation — with no one party or ideology dominating — that can give the matter its full attention. The inquiry should be conducted in public as much as possible. It could take the form of a select committee of Congress, with an equal number of Democrats and Republicans and with a chairman and vice chairman from the different parties. Or it could take the form of an independent commission, established and empowered by Congress but operating outside government. Both options have advantages and disadvantages, but either is better than leaving the matter solely to the standing committees.
History offers many examples in which the investigations of independent counsel were supplemented by the efforts of congressional committees or independent commissions. John Dean’s 1973 testimony riveted not only the Senate Watergate Committee, but federal grand jurors as well. President Clinton’s Arkansas real estate investment was the subject of hearings by the Senate Banking Committee and an investigation by independent counsel Kenneth Starr.
It can get complicated: Oliver North’s Capitol Hill appearance got his criminal conviction overturned. But the risks can be managed, and are outweighed by the value added. Indeed, the Senate intelligence committee and the FBI have pursued parallel investigations for months. The issue is not whether there needs to be an inquiry beyond the criminal probe, but who should conduct it.
Recognizing the need for a select committee or independent commission does not mean the Senate intelligence committee should end its investigation — any more than the existence of the 9/11 Commission meant that the intelligence committees should not ask hard questions of the intelligence agencies after the attacks. The intelligence committees have the right and responsibility to keep their own houses in order. But there are larger questions at issue that demand an investigation outside “business as usual,” and that will not be answered by a special counsel. The stakes are too high to leave these stones unturned.