In one way, the appointment of Robert Mueller as special counsel in the Russia investigation could greatly hamper parallel investigations in Congress.
Witnesses may well resist appearing before congressional committees for fear of incriminating themselves, knowing that Mr. Mueller, the former FBI director appointed by the Department of Justice, is on the hunt for criminal wrongdoing. His entry on the scene – looking at Russian interference in last year’s US election and at possible Trump campaign collusion with Russia – may taint the witness pool, so to speak.
But the investigations by the two branches of government can actually complement each other, say members of Congress and outside experts. That’s because they serve different purposes. Mueller’s focus is on the legal side: Has a crime been committed? Congress’s job is oversight: What happened – and if corrective steps are needed, what are they?
While Mueller’s investigation will take place largely behind closed doors, ending with a prosecution or not, Congress can be much more open in its work, points out Rep. Adam Schiff (D) of California, the lead Democrat on the House Intelligence Committee.
“I really view the public portion of our investigation as extremely important,” said Congressman Schiff, at a Monitor breakfast with reporters on May 24.
“If we conduct all of our hearings in closed session, do our work in closed session, and our interviews, and then we throw open the doors when we’re finished, and say, ‘here’s our report, you should just believe it, take our word for it,’ it’s unlikely to be accepted by the country.”
That’s the prism through which he viewed his committee’s May 23 public hearing with former CIA Director John Brennan. At that hearing, Mr. Brennan said for that first time in public that he was concerned last year that Russia was trying to influence “US persons” connected with the Trump campaign to act – knowingly or unknowingly – in the interests of Moscow.
Brennan said, however, that he did not know whether there was collusion or not. President Trump maintains there was no collusion, and reportedly asked two top intelligence officials in March to publicly back that up, though they declined. Mr. Trump says he had "this Russia thing with Trump and Russia" in mind when he decided to fire Comey, calling it a "made-up story."
What needs to happen now is for Mueller and members of Congress to get together and coordinate – kind of like air traffic control, “make sure we don’t get in his lane,” said Sen. Lindsey Graham (R) of South Carolina, speaking with reporters.
As it stands now, "I can’t think of a major witness that we would want to hear from, or the public would want to hear from, that Mueller wouldn’t also want to hear from," the senator said.
An obvious case is that of Mr. Trump’s former national security adviser, Michael Flynn. He was fired in February after giving misleading information to the vice president about his conversations with Russia’s ambassador, according to the administration.
He has pleaded the Fifth Amendment against self-incrimination in refusing to hand over documents subpoenaed by the Senate Intelligence Committee – unless he gets immunity, which the committee has not granted. Instead, it has subpoenaed Mr. Flynn’s businesses for the documents. The House Intelligence Committee, too, plans to subpoena Flynn, Schiff said. He said Mueller will have to be consulted over the matter.
Two models for Congress
Don Ritchie, former Senate historian, points to two investigations as effective – and ineffective – models for Congress to consider when a special counsel is also at work.
In the Iran-contra affair under President Reagan, a joint House-Senate investigative committee granted key witnesses limited immunity as they testified about the sale of US arms to Iran to fund contra rebels in Nicaragua. A special prosecutor later won their convictions, but these were thrown out because of the immunity.
In the 1970s, the special bipartisan Senate committee that was set up to investigate the break-in at the Democratic National Committee headquarters in the Watergate building uncovered the existence of White House tapes – and that eventually prompted the special prosecutor to subpoena the tapes.
“There’s a lot of competition back and forth” between a special counsel and Congress, says Mr. Ritchie. “In Watergate, you could say they benefited each other. In Iran-contra, they got in each other’s way.”
The Watergate investigation “was the model,” says Ritchie. Both parties participated. Despite some very hostile witnesses, they were treated with respect. An enormous amount of research was done. In the end, Congress passed campaign finance reform legislation and the special prosecutor pushed for convictions that sent members of the Nixon administration to jail. On the verge of impeachment, the president resigned.
Lawmakers say that in this case, Congress, depending on its findings, could come up with some kind of an early warning system when elections are being tampered with, might change balloting itself – requiring a paper trail, or might apply additional sanctions to Russia. Mueller, as a special counsel, could take none of these steps.
At the Monitor breakfast, Schiff said that impeachment “is not anything to rush toward.” He pointed with caution to the magnitude and disorder of President Clinton’s impeachment. To impeach Trump, the standard would need to be met ("treason, bribery, or other high crimes and misdemeanors"), Republicans would have to be on board, and so would the public.
Right now, it’s only “allegations,” he said. “We are still very early in the investigation.”