Special Counsels, Independent Commissions and Select Committees

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Deputy Attorney General Rod J. Rosenstein’s appointment of Robert S. Mueller as a Special Counsel to investigate Russian interference in the 2016 election has pleased a number of people. I, however, will hold my cheering for the announcement of a Special Select Committee in the Senate.

This is not to say that the appointment is a bad thing. In fact, Mr. Rosenstein has acted admirably and chose wisely. Yet the nature of a Special Counsel, as eloquently detailed by David Frum, permits only a narrow focus on criminal conduct.

It is worthwhile to also look at the regulations surrounding this role. Three items in particular stand out: 1) The Deputy Attorney General, in this case, “establishes and defines the prosecutorial jurisdiction of the special counsel”. 2) “The (Deputy Attorney General) must be notified concerning significant actions that the special counsel is to take, and may countermand any proposed action by the special counsel.” 3) ‘Justice Department regulations provide that a special counsel may be removed by the Attorney General for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Department policies.” ‘

While it is my assumption that Mr. Rosenstein is operating in good faith with regards to the above, President Trump may fire him. A temporary replacement chosen by the President may be someone less generous in their oversight, or one who would simply fire Mr. Mueller. Thus I will continue to advocate for a Special Select Committee in the Senate.

Although pleased with the appointment of a Special Counsel, many say it is not enough. They are correct considering the prosecutor’s explicit focus on criminal conduct. Yet most, including members of Congress, are interested in an Independent Commission. Many favor this model specifically because Senators and Representatives are not included on the panel. Unfortunately Independent Commissions are created by Congressional Legislation which may be vetoed by the President. While it is possible that Congress would find the votes to override a Presidential veto, it is certainly not a guarantee. Such Commissions also do not have the full authorities of a Congressional investigation.

One interesting notion about Independent Commissions is a criticism from Senator Trent Lott. A report prepared by the Congressional Research Service quotes the Senator as stating that this investigative method is an ‘ “abdication of responsibility” on the part of legislators’. In other words, it is the responsibility of the members of Congress to investigate controversial or otherwise challenging issues, and this should not be passed off to others.

Here we turn to the notion of a Special Select Committee in the Senate. It’s goal in this particular case would be, as stated by Hennessey and Wittes, “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”.

A significant favorable point is that such a Committee is passed by a resolution in the Senate and may not be vetoed by the President. The resolution creating the committee also allows for far broader powers than an Independent Commission. Select Committees may take depositions from staff members, use subpoenas to obtain testimony or documents, and grant immunity in exchange for testimony. Additionally the tools available include Congress’s multiple methods of dealing with contempt, as well as their “broad authority to inspect classified information”, further expanded for the purposes of a legislative investigation. The resolution to create this Committee might even permit it to subpoena tax returns. Such authority makes this a powerful investigative option, and the one I support.

Critics of a Special Select Committee site partisan behavior. While a Special Select Committee was successfully used in a genuinely bipartisan investigation of Watergate, it is true that more recent such Committees in both the House and the Senate have been mired by partisan conflict. So let us return to Senator Lott. For Senators to ignore their responsibilities as stated in their oath is to abdicate their responsibilities. In his comments Senator Lott quotes from James Madison’s Federalist Paper No. 37:

It is misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good. I therefore find two reasons to support a Special Select Committee in the Senate. Not only is it a potent investigative method, it’s creation would mean the setting aside of partisan behavior in order to defend our Constitution and our Democracy.

Cassandra Dragt Stafford is the Founder of Real Democracy Today, an organization dedicated to encouraging more exacting ethical standards to ensure the integrity of our government and its responsiveness to the people.