Americans of all political stripes are concerned about the fact that Russia attempted to interfere in the 2016 election. These events compel a thorough investigation, and various inquiries are already underway. This white paper explains the different investigative mechanisms available to the legislative and executive branches, drawing on past experiences to highlight their strengths and weaknesses and identifying potential pitfalls that must be managed.
Americans of all political stripes are concerned about the fact that Russia attempted to interfere in the 2016 election – and the possibility that President Donald Trump’s close associates were involved and that the White House may be covering up these events, including by abruptly dismissing the Director of the Federal Bureau of Investigations, James Comey, who was investigating these connections. These events compel a thorough investigation, and various inquiries are already underway. In a rapidly unfolding, complex situation of this sort, what is the most effective way to conduct an investigation? Such a probe, after all, is inevitably politically charged, may not elicit cooperation from many important witnesses, and will reach into the highest levels of our government.
This is not the first time that a matter of national urgency has required a thorough investigation. In fact, history is replete with important investigations that exposed wrongdoing, explained the stakes, and educated the public. Done right, these reflect American governance at its best. This white paper explains the different investigative mechanisms available to the legislative and executive branches, drawing on past experiences to highlight their strengths and weaknesses and identifying potential pitfalls that must be managed. It comes to the following conclusions:
The appointment of former-FBI Director Robert Mueller as special counsel should not serve as a barrier to, or a substitute for, congressional action. The special counsel’s criminal investigation is far narrower in scope than a proper legislative investigation. A robust congressional effort is critical to furthering transparency and rebuilding trust in our democratic institutions. Some fear conflicts between congressional inquiries and criminal investigations. The impact of congressional grants of immunity on potential criminal prosecution, which will likely be necessary to incentivize witnesses to testify, raises nettlesome questions. In fact, such potential complications have little to do with the appointment of a special counsel – the FBI investigation that Comey was managing would have posed the same challenges. They can be managed through coordination between the various stakeholders, and the risk to a potential prosecution does not negate the public’s urgent need to know the facts about an assault on American democratic institutions.
Given the stakes, Congress should take steps to minimize partisanship. The Church Committee, which investigated CIA and FBI abuses of authority in the 1970s, stands out as a good model. As its former Chief Counsel Frederick A. O. Schwarz (who currently serves as the Brennan Center’s chief counsel), has pointed out, a key to the committee’s success was its “unusual bipartisan structure.”2 Measures such as giving the majority party only a one-vote advantage over the minority, and involving the minority leadership significantly in the operation of the committee and the investigation, would go a long way towards moderating any partisan bias. The Senate Intelligence Committee recently took a good step in that direction, unanimously granting subpoena authority to the Republican chair and Democratic vice-chair.3
It is critical that congressional investigations have sufficient resources. This is presently not the case. Current congressional investigations are being carried out by a handful of regular committee staff. The Benghazi investigation, by contrast, worked with a staff of 57, while the 9/11 Commission had 80 staff members at its disposal. Congressional leadership should make available funds that allow the investigations to quickly ramp up their staffing.
The intelligence committees should clarify that their mandate is broad enough to encompass not just collusion with the Russian government around the 2106 election, but other ties with Russian individuals or interests as well, where those ties could pose conflicts of interest or risks to national security. The committees should also be more transparent about how they intend to proceed with their investigations, giving the public a sense of how long they intend to take and confirming that they intend to issue a public report.