Published by The Lawfare Institute
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To date, Attorney General Jeff Sessions and congressional Republican leaders have resisted calls for an independent investigation of the scandals concerning Russia and Donald Trump and his circle—the most serious of which is possible collusion of members of the Trump campaign in Russia's interference in the presidential election. If an independent investigation were to happen, it could take many forms—a congressional special committee with joint Democratic-Republican control, a congressionally-created bipartisan special commission (along the lines of the 9/11 Commission), a special prosecutor appointed under Department of Justice regulations, or an independent prosecutor given the full delegated power of the Attorney General. Although the circumstances cry out for an aggressive and independent inquiry of some kind, none of the possibilities above seem likely at the moment, given the unified opposition of President Trump, Sessions, and Republican congressional leadership. (It is possible that unanimity may crack, however.)
For now, we are left with the second best option of congressional and FBI investigations. The FBI has at least three separate investigations open, two into hacking and one, according to Reuters, a "counterintelligence inquiry [which] includes but is not limited to examination of financial transactions by Russian individuals and companies who are believed to have links to Trump associates." Michael Flynn was also interviewed by the FBI about his communications with the Russian ambassador about sanctions prior to the inauguration, in what may have been a separate investigation.
On the congressional side, the major investigations are being handled by the Senate Intelligence Committee and the Senate Judiciary Subcommittee on Crime and Terrorism. The House Intelligence Committee seems to be reluctantly investigating a bit also, and the Senate Judiciary Committee has requested some Russia-related information from the executive branch.
Neither the congressional nor the FBI investigations are immune to interference from the White House or Republican allies of the President. By law, the FBI Director may be fired by the president for any or no reason (though political realities often give the FBI director some protection). The FBI, as part of the Department of Justice, is “responsible”—the Bureau’s word—to the Attorney General. Furthermore, despite strong arguments that Sessions should recuse himself from the FBI's Trump-Russian investigation on the grounds of the prominent role he played in Trump’s campaign, Sessions has refused to do so. In the last few days, a DOJ spokesperson issued only a tepid response to a report that the White House chief of staff pushed the FBI to make Trump-friendly statements to the media about the Russia investigation.
The credibility and independence of the congressional investigations are also in question. Mitch McConnell, the Republican leader of the Senate, might be one the most partisan people in the Capitol, and openly disdains many norms of good government. Speaker of the House Paul Ryan has a more benign public image, but often acts in a deeply partisan manner nonetheless. The House leadership has already been protecting Trump on Russia and other issues.
Republican congressional committee chairs have some degree of independence from the leadership, but not unlimited. But that practical degree of independence is only meaningful if the chairs want to assert it. The Republican chairs of both the Senate and House Intelligence committees have admitted in recent days that they were voluntarily enlisted by the White House to contact news organizations to criticize press reporting about Trump campaign ties to Russia—actions that call into question their commitment to a credible inquiry. The House Chair, Devin Nunes, was a member of Trump’s transition team. The Senate Chair, Richard Burr, was a national security adviser to Trump during the campaign.
Given the seriousness of the allegations that are being investigated, it is crucial that the public, the law enforcement and security bureaucracies, and the out-of-power Democratic Party can trust that the FBI and congressional investigations are thorough, nonpartisan, and independent of the White House. But how can that happen, under the circumstances?
Maybe it can’t. But since we are living in a second-best world—with no truly independent and trustworthy investigative body—it is worth thinking about how to gauge the credibility of those investigations that are occurring.
The FBI and congressional investigations will take place largely behind tightly closed doors, since they will pervasively involve sensitive and classified material. Because direct public knowledge of the investigative processes and the fruits of the investigations will likely remain hidden, what can we look for as proxies for judging the credibility of the FBI and congressional efforts?
What are credible insiders saying and doing?
FBI Director James Comey certainly made some errors in his handling of the Hillary Clinton email matter. Many on the left will be reluctant or unwilling to put any faith in him. But many serious, nonpartisan people who have worked with or know Comey describe him as a man of high integrity. There is little reason to think that Comey would want to cover up for Russian malfeasance or unseemly or illegal connections between Trump and his circle and Russia. As long as Comey stays in his job, and gives no indication that the White House, Jeff Sessions, or Trump-friendly FBI agents are attempting to derail the investigation, that will provide some indication that the FBI process can be trusted.
Other credible insiders whose words and deeds will matter include Mark Warner, the Democratic Vice Chair of the Senate Intelligence Committee—one of the congressional committees conducting an investigation. According to Warner, the Intelligence Committee investigation is not off to a good start, because of the chair’s willingness to join a White House public relations campaign challenging reports of connections between the administration and the Kremlin. As the Washington Post reports, Warner has expressed “grave concerns about what this means for the independence” of the investigation.
Senate Intelligence Committee members Diane Feinstein (Democrat) and Susan Collins (Republican) have bipartisan credentials on security matters. Republicans Tom Cotton and Marco Rubio, also on the committee, cannot be accused of excessive bipartisanship, but they are both Russia hawks and hence their views matter as well. Another Senate investigation of Russia-Trump connections is being led by Republican Senator Lindsey Graham of South Carolina and Democrat Sheldon Whitehouse of Rhode Island, the chair and ranking minority member of the Senate Judiciary Subcommittee on Crime and Terrorism. Both are credible voices. If these senators stand by the credibility of their own and the FBI's investigations, that will be a good sign.
Watch the leaks.
When National Security Advisor Michael Flynn lied about his discussion of sanctions with the Russian ambassador, a large number of national security insiders leaked the truth to the media, based on information seemingly gleaned from a sensitive national security wiretap. That numerous people would risk legal jeopardy to put out the truth suggests a deep level of distrust in the national security bureaucracy of connections between Russia and Trump people. Going forward, the nature and frequency of leaking will give signals about how important insiders think that the Russia-Trump investigations are being handled.
Watch Russia-related policy initiatives.
If Trump and the White House follow through with pro-Russia policies, such as weakening or removing sanctions, that will provide indirect evidence that they are not feeling much heat and pressure from the investigations. By contrast, if pro-Russia policy changes remain on hold, as they seem to be now, that might suggest that the investigations are causing discomfort behind the scenes.
Are lots of people lawyering up?
If the New York City and Washington DC rumor mills pick up talk about numerous lawyers specializing in white collar criminal defense and congressional investigations being retained by people with Trump or Russia connections, that will provide some reason for comfort that the investigations are being run aggressively.
Is anyone being indicted?
Depending on what actually occurred with Russian hacking of the Democratic National Committee and other entities, Trump-Kremlin ties during the campaign, the Michael Flynn scandal, and other events as yet unknown, a slew of federal criminal laws may have been broken—everything from seeking to evade U.S. sanctions, to unauthorized access to computer networks, to lying to the FBI. If the FBI investigation is serious and aggressive, it seems reasonable to think that there should be some indictments.
Are congressional Democrats on the relevant committees empowered to take the initiative?
Congressional committees could authorize the ranking minority (Democratic) leaders to issue subpoenas for documents or testimony as they see fit; or Republicans could keep control of these powerful tools. Which will occur?
Follow the money.
Simply wanting to improve relations with Russia is not strange; both George W. Bush and Barack Obama entered office desiring just that. But the level of Trump's affection and solicitousness for the odious Putin regime cries out for explanation. Even more strange and troubling is his stated desire to give Russia unilateral policy concessions that would reward Putin's bad behavior—such as recognizing Russian theft of Crimea, and lifting sanctions that were imposed for the election hacking.
To understand whether Trump has financial ties that are affecting his views of Russia, or which built him relationships with Kremlin insiders, the investigations must access his personal tax returns, the tax returns of the many corporations and other entities through which he does business, and related financial documents. The press should ask senators on the relevant committees and the White House press office whether tax returns and other financial documents have been requested, and whether Trump is cooperating.