Momentum is building for a major bipartisan independent inquiry into the various allegations of ties between President Donald Trump and his associates and the Russian government. Much of this support takes the form of calls for a bipartisan commission in the style of the 9/11 Commission.
The need for the formation of some new body dedicated to a credible and exhaustive inquiry of the Russia Connection is clear. The most effective model, however, is not a 9/11 Commission-style outfit but something more mundane: a select congressional committee with a large and first-rate staff and a membership committed to getting answers.
Before turning to the ideal form for a congressional inquiry, let’s review the various ongoing investigations within the executive branch. Those include interagency task force inquiries into foreign money coming into the presidential election, as well as investigations of specific conduct by former Trump campaign manager Paul Manafort and advisors Roger Stone and Carter Page and others for possible ties to Russia. It is unclear whether there is a relationship between those inquiries and the hacking and active measures campaign U.S. intelligence officials determined Russia undertook to help Trump win. Separate reports regarding contacts between former National Security Advisor Michael Flynn and the Russian ambassador—in which the two were discovered to have discussed sanctions despite earlier denials—led to Flynn’s recent resignation. Following Flynn’s departure, multiple media outlets reported that intercepted communications showed that Trump campaign officials had “repeated” or “constant” contact with Russian intelligence in the year leading up to Trump’s election. There are also the salacious but largely unverified allegations contained in a privately prepared dossier. Finally, there are persistent unanswered questions about whether President Trump has financial ties to Russia.
In short, there seems to be quite a bit going on in term of investigation, very little of it visible to the public. But none of it is a substitute for a serious congressional examination of the subject.
This is not chiefly because of any concerns about the integrity of the executive branch investigations, though those concerns do exist. They were heightened over the past week with revelations that the White House had inappropriate contacts with the FBI, in apparent violation of Department of Justice policies, and tried to direct the Bureau to kill recent press stories. While the FBI declined to do so, CIA Director Mike Pompeo and SSCI Chairman Richard Burr reportedly did participate in those calls with the press.
That said, the questions of whether Attorney General Jeff Sessions should recuse himself from the current matters and whether the Justice Department should step aside entirely and appoint a Special Counsel to conduct the investigation are largely distinct from the question of congressional investigations.
While the subject matter overlaps, the executive branch and the legislative branch are conducting different investigations for different purposes. Namely, the executive branch is conducting a set of foreign intelligence and counterintelligence investigations that may (or may not) have criminal investigative elements. Its goal is not to answer public questions about what happened or what may still be happening.
By contrast, Congress is charged with ascertaining information related to legislative purposes—including the imposition of sanctions in response to the activity of a hostile foreign power, the discharging of its oversight function with regard to fraud, abuse, or corruption in the executive branch, and legislative measures that might be necessary to protect the American electoral system. It also has a duty to publicly address major questions the political system is struggling with now in a fashion the public can absorb and process: What is the President’s relationship with Russia? And is there reason to be concerned about it?
The Current Congressional Investigations
The essential problem is that there is no current congressional mechanism with the investigative scope, staffing, and will to answer these questions in a serious fashion. There are currently a number of congressional inquiries. In the Senate, the Select Committee on Intelligence (SSCI), the Judiciary Committee, and the Armed Services Committee have all begun investigations generally related to Russian interference in the U.S. election. To date, the SSCI investigation has been the principal inquiry taking place in Congress. Senate Majority Leader Mitch McConnell has resisted calls for the formation of a new select committee or Commission by insisting the SSCI “is more than capable of conducting a complete review” within its existing structure and jurisdiction. The week before the inauguration, Chairman Richard Burr and Vice Chairman Mark Warner released a joint statement pledging to undertake:
a bipartisan inquiry of the intelligence reporting behind the Intelligence Community assessments from January 6, 2017 on [Russian Activities and Intentions in Recent US Elections].
The scope of the Committee’s inquiry will include, but is not limited to:
A review of the intelligence that informed the Intelligence Community Assessment “Russian Activities and Intentions in Recent US Elections;”
Counterintelligence concerns related to Russia and the 2016 U.S. election, including any intelligence regarding links between Russia and individuals associated with political campaigns;
Russian cyber activity and other “active measures” directed against the U.S., both as it regards the 2016 election and more broadly.
The statement concluded with the promise that “[t]he Committee will follow the intelligence wherever it leads. We will conduct this inquiry expeditiously, and we will get it right.”
At the time, that statement offered some degree of reassurance. The committee seemed to consider the question of Russian interference in the U.S. election and its ties to campaign figures to be a non-partisan issue related to safeguarding fundamental democracy. Importantly, the SSCI had many of the necessary elements for a successful investigation: Much of the subject matter is already within the committee’s ordinary oversight jurisdiction, and members and staff are cleared to receive highly-classified materials—which is critical for an investigation that involves sensitive ongoing operations.
Unfortunately, it has now become clear that the SSCI inquiry is insufficient to the task over the long term—for a number of different reasons.
First off, the recent revelations that Chairman Burr acted at the White House’s direction to counter stories regarding President Trump’s ties to Russia seriously compromises him as a leader of any investigation into the Russia Connection. The most important element of a successful congressional investigation is a Chairman and members actually committed to conducting a politically-independent process. Reports early last week that the Committee had sent letters to “more than a dozen agencies, organizations and individuals to preserve communications related to the panel's investigation” seemed to indicate not only that a serious and thorough investigation was underway, but also that the Committee was prepared to be adversarial with respect to the Trump Administration.
That degree of independence seems far less likely where the Chairman was willing to act at the direction of White House Press Secretary Sean Spicer to privately help counter an alarming New York Times story reporting repeated contacts between Trump campaign officials and Russian intelligence during the elections. Vice Chairman Mark Warner issued the following statement in response:
I have seen the press reports suggesting that the White House enlisted senior members of the intelligence community and Congress to counter allegations regarding issues that are currently under SSCI investigation. I have called Director Pompeo and Chairman Burr to express my grave concerns about what this means for the independence of this investigation and a bipartisan commitment to follow the facts, and to reinforce that I will not accept any process that is undermined by political interference.
I am consulting with members of the Intelligence Committee to determine an appropriate course of action so we can ensure that the American people get the thorough, impartial investigation that they deserve, free from White House interference.
It will be up to Republican leadership to demonstrate in the days ahead that they are capable of pursuing this investigation “wherever it leads.”
I have said from the very beginning of this matter that if SSCI cannot properly conduct an independent investigation, I will support empowering whoever can do it right.
Republican SSCI member Susan Collins followed with a statement expressing ongoing support for the SSCI investigation but noting that to preserve public “confidence in our findings, it is important that the Committee work in a completely bipartisan fashion and that we avoid any actions that might be perceived as compromising the integrity of our work.”
The second problem with the SSCI inquiry is jurisdictional. The scope of the investigation into possible ties of President Trump and his associates to Russia and Russian interference in the U.S. election both exceeds the jurisdiction of any one committee and implicates the jurisdictions of multiple committees. It involves investigation into Russian active measures generally, the specific hacks of the DNC and DCCC, the conduct of multiple individuals and their relationships with foreign governments, and evidence of financial and personal relationships that might explain motivations and degrees of influence or control. The wider the scope of the investigation gets, the less it makes sense to shoehorn such complex and cross-cutting matters into the SSCI’s existing jurisdiction.
This problem is compounded by the fact that at least some of the matters requiring investigation are still ongoing; the story of Trump and Russia, after all, is continuously unfolding. Unlike congressional investigations into discreet and completed episodes, the parameters of which can be defined at an investigation’s outset, this one has to be both broad and nimble.
This brings us to a final problem with the SSCI inquiry: its staffing. The SSCI already has a full time oversight role. It has major ongoing legislative projects. It is simply not staffed at the level or in the manner necessary to also conduct a highly complex and time-consuming investigation on a matter of critical national importance.
This project needs a large staff devoted to it and it alone.
There are two basic options to achieve this purpose: the formation of a Select Committee or the creation of an Independent Commission. There are advantages and disadvantages to both models, and right now, the commission model is the one favored by many commentators. In our view, however, practical and legal considerations strongly favor the less dramatic option of a select committee.
Importantly, the need for an additional committee or commission does not mean the SSCI investigation should be disbanded—though Chairman Burr would be wise to offer as many assurances regarding independence as possible. For now, it is the most advanced and effective congressional inquiry and must be permitted to continue to fully pursue its investigation until the formation of a new body and potentially beyond. As noted above, many of the central questions regarding Trump and Russia fall squarely within the SSCI’s oversight role. The preliminary findings of the SSCI investigation may well form the basis of the larger investigation, either by producing the preliminary facts or identifying the full scope of issues.
The Bipartisan Commission Approach
Currently, the heavy favorite among commentators appears to be a statutorily created independent commission in the model of the 9/11 Commission. The attraction flows from the fact that the 9/11 Commission—the only example of its kind in a major high-stakes investigative case—is viewed as a resounding success.
This model has some advantages. Such a national commission would resolve issues related to jurisdiction, scope, and complexity that currently exist in the SSCI investigation. More significantly, the commission could be structured to better resist political pressures. The members of the commission need not be members of Congress, after all, a fact that could make the exercise less political than a congressional committee will tend to be. Furthermore, a national committee would likely be constituted based on an even partisan split, eliminating majority-minority dynamics. As demonstrated by the Burr episode and the larger concerns among Democrats about the commitment of Republican members to a serious investigation, there are real benefits to this higher degree of political insulation.
But the national commission approach also has significant disadvantages, both in terms of the plausibility of creating one and in terms of its ability, if created, to function effectively. These disadvantages are, in our judgment, cumulatively insurmountable.
First and foremost, a national commission is not practically achievable at the present time, for the simple reason that it would require legislation, and legislation can be vetoed. The White House is almost certain to oppose the creation of a national investigative body to investigate what the President consistently derides as “fake news.” So there’s no particular reason to imagine he would sign a bill creating one, particularly one that gives equal voice to Democrats and has a large staff of energetic investigators devoted to reporting matters to the public. As a result, such legislation will require passage by a veto-proof majority. It is possible that additional, increasingly serious revelations will lead to the necessary groundswell of support. As things stand now, however, the realistic possibility of forming a commission on such a basis is near zero.
Even if the politics didn’t make the creation of a commission a fantasy, the conditions that lead the model to work so well in the 9/11 context are not present here. The 9/11 Commission was formed in the wake of a national emergency to address an external threat. It enjoyed broad support in Congress and, pivotally, the cooperation from the executive branch. While there were certainly disagreements with the administration as the investigation progressed over information production, there were no assertions of executive privilege and the commission ultimately got the information it needed.
Indeed, here’s how the commission itself described the cooperation it received from the Bush administration:
We thank the Congress and the President. Executive branch agencies have searched records and produced a multitude of documents for us. We thank officials, past and present, who were generous with their time and provided us with insight. The PENTTBOM team at the FBI, the Director's Review Group at the CIA, and Inspectors General at the Department of Justice and the CIA provided great assistance. We owe a huge debt to their investigative labors, painstaking attention to detail, and readiness to share what they have learned.
And elsewhere: “Dozens of government agencies and other entities provided the Commission with more than 2.5 million pages of documents and other materials, including more than 1,000 hours of audiotapes.”
The mood surrounding any potential inquiry into Trump and Russia will not be nearly so warm and fuzzy. Given the palpably toxic atmosphere, a serious and credible investigation into Trump and his associates will instead be met with substantial resistance by the White House and administration appointees. So the question is whether the commission model is a good one for sustained battle with an executive branch that won’t be on board with the project.
The problem is that it’s hard to give a commission the full array of tools and authorities implicated by legislative-executive confrontations. Even where authorities can be delegated by statute, the Commission necessarily stands on weaker legal footing in asserting the constitutional prerogatives of Congress and seeking enforcement of legislative rights in court. For example, Congress can give a commission subpoena power, and it can thus litigate to back its subpoenas, but it can’t exercise the power that really puts muscle behind congressional document demands: the legislative and appropriations powers to hold hostage something the President cares about if its production demands are ignored. This problem did not hobble the 9/11 Commission, which was operating in a fundamentally cooperative environment, but a commission in a consistently adversarial posture with respect to the White House will, we suspect, find it debilitating.
Finally, the investigation will implicate certain important, inherently-political decisions the 9/11 Commission did not have to face—most notably, the determination of when to offer immunity in order to compel witness testimony is politically fraught. Any time Congress and the executive branch are investigating a matter concurrently, congressional immunity grants risk precluding or damaging executive prosecutorial interests. Famously, for example, the Iran-Contra independent prosecutor was forced to dismiss charges against key high-ranking officials after their convictions were overturned on appeal for failure to meet the high burden of proving that evidence in the cases was in no way derived from testimony immunized in the concurrent congressional probe. An unelected commission is ill-suited to make such determinations and, in any event, adds a third actor (in addition to the executive and Congress) into the mix with respect to handling witnesses and gathering facts. Unlike in the context of the 9/11 Commission, which was specifically not about assigning individual blame or determining who (other than Al Qaeda) had done wrong, immunity may prove pivotal here.
The Select Committee Approach
There is a less grandiose alternative to an independent commission that has the advantages both of being achievable and of having the right mix of tools for doing the job well: the formation of a select committee devoted to the investigation.
There is strong historical precedent for Congress’s creating committees to undertake specialized investigations. The CRS Congressional Oversight Manual highlights notable examples:
the Senate Watergate Committee investigation into the Nixon Administration in the early 1970s; the Church and Pike select committees’ inquiries in the mid-1970s into intelligence agency abuses; the 1981 select committee inquiry into the ABSCAM scandal; the 1987 Iran-contra investigation during the Reagan Administration; the multiple investigations of scandals and alleged misconduct during the Clinton Administration; and the Hurricane Katrina probe in 2005 during the Bush Administration.
The structure of temporary select committees is flexible, and can be tailored to the investigative purpose at hand. Additionally, a select committee can be authorized to employ staff as appropriate to address workload needs and to ensure subject matter expertise. Staff can be borrowed from other parts of Congress, loaned by the executive branch, or hired under contract. The ability to hire or borrow highly-qualified expert staff is critical in an investigation as wide-ranging and complex Congress faces here. Seeking out expertise also tends to reduce politicization of the ultimate conclusions of the investigation.
Importantly, in considering the present situation, select committees can be granted not only specific jurisdiction, but also special investigative authorities. The most significant of those authorities relates to gathering information (namely, the subpoena power, the ability to take depositions, and related legal enforcement mechanisms) and the ability to grant immunity for witness testimony.
The most important advantage to the select committee model is that it can be effectuated without the President’s consent. Congress—indeed, each individual house of Congress—can set up and resource its own committees at will, so while senators would need to convince McConnell to back the project (which a national commission would also require), they would not need either the President on board or two-thirds majorities in both chambers to make this happen. In an ideal world, a bicameral select committee would reflect a high degree of buy in from both the House and Senate. In the current reality, however, the Senate is likely better positioned to undertake a credible investigation.
The major disadvantage to a select committee is that it is potentially more subject to political control by congressional leadership, and, through the leadership, by the administration. There is no perfect solution to this problem, but there are several steps that could mitigate the problem substantially. The membership of a select committee should reflect an even partisan split—or as close to it as is politically doable. It is essential that the committee be chaired by a person whose commitment to a serious investigation is not subject to reasonable question. (Our nominee: Lindsey Graham.) It is essential that whoever chairs the committee obtain prospective commitments from the Senate leadership about resources, staff, and leadership support for the project. And it is essential as well to populate the committee with a membership that will act in a bipartisan fashion.
In the end, these are the foundational preconditions for success, whatever the formal structure of the investigation looks like. In our judgment, at least, they are more likely to materialize in a select committee than in a national commission. The latter is enticing, but it is not doable right now—and it’s not clear it would be desirable if it were.