Now that
more than a year has passed since the 2016 presidential election and the reports of
Russian interference, we should evaluate the progress and status of the Russia investigation to ensure that the goals of the investigation are being met. Currently, the investigative efforts are
splintered across the House, Senate, and Department of Justice and, as we will see, each actor has a different purpose and goal.
Perhaps the highest profile portion of the investigation, and the one many view as showing the
most potential to produce quantifiable results, is the effort led by former FBI Director
Robert Mueller. However, it is important to consider the limitations of Mueller’s position as special counsel.
Historically, many of the
high profile investigations involving the executive branch (Iran Contra, Whitewater, and Monica Lewinsky) were led by special prosecutors (also referred to as independent counsel), a role very
different from that of special counsel. After the Watergate scandal, Congress passed the
Ethics in Government Act in 1978, which created the special prosecutor. The special prosecutor would be appointed (at the request of the attorney general) by a three judge panel and would have the ability to pursue the investigation and prosecute any charges
independent of oversight by the executive branch. However, that act was ultimately scrapped in 1999,
partially due to the fact that both parties have had bad experiences with members of their party being investigated under the statute. While there have been
calls for Congress to pass another version of the act, it is
unlikely that would happen in a Republican controlled Congress.
Thus, ultimately Mueller was appointed as special counsel under the DOJ’s
existing structure for investigations. Consequently, Mueller
answers to the Deputy Attorney General Rod Rosenstein, since Attorney General Jeff Sessions
recused himself. While Mueller is not subject to
day-to-day supervision and Rosenstein has said that he will allow Mueller leeway in conducting the investigation, there are still problems with Mueller having to answer to Rosenstein. First and foremost is the fact that Rosenstein is a
potential witness in the investigation. While Mueller’s investigation has the potential to produce
criminal convictions, there is
uncertainty surrounding the ultimate outcome. However, it is not clear that any of the conclusions of the investigation
would be released to the public.
However, in addition to Mueller’s investigation there are also
multiple Congressional investigations. Historically, Congressional investigations can obtain important information and
inform the public even when there was no criminal wrongdoing, but currently, the congressional investigations are being handicapped by
secrecy and
insufficient staffing. Additionally, the Senate Intelligence Committee, which some consider to be most likely to produce a
bipartisan report, has been focused on sanctions and changes to
counter-intelligence policy in response to any Russian interference. That has led some Congressional leaders to
call for an independent commission similar to the one created after 9/11, which was created after the joint House-Senate committee was unable to provide
satisfactory answers to the families of the victims. Such a commission could be staffed with staff and experts given
subpoena powers, which could address some of the problems facing the current Congressional investigations. Additionally, such a commission could
provide a way for Congress to give the American people a full report of what exactly happened.
Though Mueller’s investigation has made
progress, its job is not to
inform the American public. Additionally, the Congressional hearings have not been as
open and informative as previous investigations. Thus, if one of the goals of the investigation is truly to inform the American public, then Congress
should consider an independent committee, with adequate staff and budget, tasked with the goal of creating a report detailing what exactly happened.
Suggested citation: Ryan Parker
, The Russia Investigation: Informing the American Public, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Dec. 16, 2017), https://live-journal-of-law-and-public-policy.pantheonsite.io/the-russia-investigation-informing-the-american-public/.
