Congressional Republicans’ responses to Russian attacks on the American political system have ranged from inadequate to damaging. Republican leadership seeks to bury this investigation in the secrecy and narrow jurisdiction of the intelligence committees. But the leaders of these committees are too close to the facts and politics to run a credible investigation. And the committees are too narrow in focus to address all of the issues presented. Moreover, the executive branch is compromised. We need a credible, independent, and comprehensive investigation in the model of the 9/11 Commission.
I have managed congressional investigations of both the Bush and Obama administrations on matters of national security. I also spent years in the White House under two different presidents responding to them. That experience makes it clear to me that Republican congressional leaders are laying the groundwork for a whitewash.
There are three main approaches one could take to conduct an investigation of these allegations pursuant to the legislative power granted to Congress in Article I of the Constitution: regular order, a select committee, or a bipartisan commission.
Regular order would allow current congressional structures to handle the Russia investigation. This would likely result in stifling control of information by the intelligence committees, and is especially vulnerable to partisanship. To the extent other committees get in on the act, it would likely generate information silos rather than a comprehensive picture. For reasons of politics and control, regular order is the strong preference of Republican leaders.
A select committee would create a temporary panel comprised of an array of committee leaders chosen by the Senate and House leadership. It has the benefit of broad jurisdiction and subject matter expertise but still remains within partisan structures. This is an approach championed by Sen. John McCain (R-Ariz.) and Senate Democratic Leader Chuck Schumer (D-N.Y.).
A bipartisan commission would bring together a collection of towering public servants and policy experts to manage the investigation. These would be people who are no longer in electoral politics. Congress would delegate its investigative power, including subpoena power, to the commission. This type of commission has been used to investigate civil rights issues in the 1950s, President John F. Kennedy’s assassination, the 9/11 attacks, and the war in Iraq in 2005, among other issues of national concern. This is the model introduced by Rep. Elijah Cummings (D-Md.) and Eric Swalwell (D-Calif.). It is also the one I have been calling for since last August.
So far, Republican leaders are not only resisting creating a bipartisan commission, but they are also refusing to allow a select committee to investigate. In December, Senate Majority Leader Mitch McConnell (R-Ky.) rejected a call by McCain to establish a special select committee. While McConnell called allegations of Russian interference “disturbing,” he argued the intelligence committee is “more than capable of conducting a complete review of this matter.” Asked about a bipartisan commission, McConnell indicated that the Senate would handle the Russia investigation in “regular order.” House Speaker Paul Ryan (R-Wisc.) dismissed similar calls.
Not all investigations are created equal. Here are five reasons why the Republican preference for regular order falls far short of the mark:
1) Russian interference is too big for one type of committee.
The Russia investigation simply covers too many substantive areas to fit it solely in the intelligence committee bucket. To be sure, it will intimately involve assessments by the U.S. intelligence community about the extent of Russian cyberattacks, motives and goals of such attacks, identities of Russian intelligence personnel and third-parties who may have assisted Russia, and counterintelligence and Russian infiltration of the U.S. government and political system.
But the Russia allegations touch on numerous issues that are the subject of other committees’ jurisdictions. The armed services committees have a stake in the military dimensions to Russian disinformation campaigns and strategic goals, as do the Senate Foreign Relations Committee and House Foreign Affairs Committee. The Senate and House judiciary committees conduct primary oversight of the Federal Bureau of Investigation and have primary legislative jurisdiction over the criminal laws at issue. The House oversight committee and Senate homeland security committee have interagency oversight jurisdiction over cyber vulnerabilities to U.S. government systems, as well as handling of classified and unclassified government records. Both homeland security committees will have a stake, too. The investigation potentially implicates a host of policy areas: sanctions, retaliation, cybersecurity, election integrity, military capability, personnel procedures, geopolitics, and intelligence performance.
The ultimate authority for a congressional investigation is grounded in the legislative power granted in Article I of the Constitution. To the extent the results of the investigation call for legislative policy responses, more committees’ subject matter expertise needs to be brought to bear. Other committee chairs have indicated an intent to investigate, including Sen. Bob Corker (R-Tenn.) (Senate Foreign Relations Committee) and Sen. Lindsey Graham (R-S.C.) (Senate judiciary crime and terrorism subcommittee) and several mixed messages from Rep. Jason Chaffetz (R-Utah) (House oversight committee). Even if they all moved forward in earnest, there would be a hodgepodge of cross-cutting information. Democrats might actually benefit from a feeding frenzy of information leaks and procedural fights. But that would not be good for the country. Only a select committee, or bipartisan commission model, could coordinate information across all the subjects to develop a definitive account.
2) Intelligence committees are too secretive to be the exclusive investigators on Russia
Republican leaders on the Hill initially proposed that any investigation of Russian interference or infiltration be tasked exclusively to the Senate Select Committee on Intelligence (SSCI) and House Permanent Select Committee on Intelligence (HPSCI). As more damaging revelations dribbled out into public view and after Michael Flynn’s removal as National Security Advisor, McConnell relented to pressure from other Senators to a degree.
There are significant secrets that need to be protected in connection with this investigation. We need to protect the sources and methods of American intelligence collection. We also need to protect foreign governments from retribution for intelligence sharing. The recent mysterious deaths of a number of Russian diplomats bring such concerns into focus.
As a matter of regular order, the intelligence committees have exclusive jurisdiction for matters requiring disclosure of sources and methods even where there is otherwise overlapping subject matter jurisdiction. They also rarely hold open session hearings or issue public findings. These committees are good at protecting American secrets even as they conduct intelligence oversight. However, the 9/11 Commission dealt with similar issues. It wrangled access to several Presidential Daily Briefs (PDBs), considered a crown jewel in executive privilege and secrecy and handled it just fine.
This structural secrecy also serves McConnell’s and Ryan’s political interests. They want to arm their members with something they can sell to angry constituents as an investigation. If they can confine the primary investigation to the intelligence committees, they generate a valuable talking point. A member of Congress can brush aside months of questions by saying an “investigation is ongoing.” I witnessed that approach to ending discussion of Russia firsthand from my congressman, Rep. Buddy Carter (R-Ga.), last week at his contentious town hall in Savannah. Add to that the secrecy of these particular committees, and there is little oxygen to fuel new press stories or rile angry constituents.
These Russia allegations are just too important as a matter of intense public interest. They go to citizen confidence in our democratic elections. Burying this investigation in the intelligence committees would preclude Americans from getting the whole picture.
3) The executive branch is compromised
Executive branch leadership is compromised as it relates to the Russia investigation. As such, an investigation grounded in the independent legislative power of Article I power is essential.
Core allegations and questions go to the nerve center of the White House. Michael Flynn resigned as National Security Advisor, disgraced as a matter of credibility and under a cloud of suspicion as to his ties to Russia. Flynn reportedly lied to Vice President Mike Pence and others in the West Wing. Then-Acting Attorney General Sally Yates briefed White House Counsel Don McGahn on credible evidence of Flynn’s security risk two weeks ago, which he shared with President Donald Trump. At a minimum, Trump has misrepresented the state of his knowledge about Flynn to the American people.
The Department of Justice is similarly hobbled. FBI Director James Comey is radioactive due to his conduct during the 2016 presidential race, which prompted the Wall Street Journal to call for his resignation. Attorney General Jeff Sessions is factually and procedurally incapable of credibility on this topic. He was at the center of Trump’s campaign, having spoken about WikiLeaks and allegations of Russian hacking during it. Exploring the basis of Sessions’ knowledge would be on any investigator’s to-do list. Further, during his confirmation hearings, Sessions refused to commit to recusing himself from investigations touching on Trump. Calls for a special prosecutor grow louder, and now include some Republicans.
To be sure, executive branch intelligence, law enforcement, and accountability agencies should continue to do their work on the Russian allegations as appropriate. But there is a premium on gathering facts outside of the executive branch.
4) Congressional intel chairs have damaged their credibility.
The White House enlisted the intelligence committee chairs to help rebut the revelations about Trump associates’ ties to Russian intelligence. Burr and Nunes are the very people Hill GOP leaders tasked with primary responsibility for the Russia investigation. They already had baggage to overcome due to leadership roles in President Trump’s campaign (Burr) and transition (Nunes).
On February 15, White House Press Secretary Sean Spicer actually dialed the phone and remained on the line while Chairman Burr and Director of Central Intelligence Mike Pompeo (creating another executive branch problem) discredited stories about Russian contacts with Trump campaign associates. Reportedly, Burr and Pompeo told reporters that “all I can tell you is the [Times] story is not accurate.” They refused to give any specified reasons the stories were false beyond a top-line declaration of inaccuracy. When an intelligence committee tells a reporter “all I can tell you,” it suggests the reason is the information is grounded in classified intelligence that cannot be shared.
That is the day after Burr stood shoulder to shoulder with his Vice Chairman, Sen. Mark Warner (D-Va.), to announce that the Senate intelligence committee would broaden its investigation. Burr said: “We are aggressively going to continue the oversight responsibilities of the committee as it relates to not only the Russian involvement in the 2016 election, but again any contacts by any campaign individuals that might have happened with Russian government officials.” It’s very difficult to square that statement with agreeing to do press surrogate work on behalf of the White House the next day. Burr now faces predicable backlash.
House intelligence committee chair, Rep. Devin Nunes (R-Calif.) also helped the White House with pushback, although he reportedly called reporters on his own with numbers provided by Spicer. He also has compared Russia allegations to McCarthyism and raised concerns about “a witch hunt against innocent Americans.” On Monday, Nunes denied having “any evidence of phone calls” or contacts between Trump campaign officials and Russian intelligence. He went on to say the real focus should be on the “major crimes” of those leaking information to the press.
When I was on the Hill, my chairman would not talk publicly about the substance of HPSCI investigations. He would not even talk about nonpublic HPSCI matters with his House oversight national security subcommittee staff with security clearances. Here, Nunes has not conducted an investigation and is spinning a lack of effort as a lack of evidence. There is no legal prohibition on contact between the White House and the House and Senate intelligence committees. The White House can certainly make its case to the committee members about why a news narrative about Russia is incorrect. I’ve been trying to remember if I ever coordinated with the White House on messaging about the subject matter of one of our investigations. I can’t. I received several plaintive calls from Obama administration officials. I recall one polite but particularly pointed call from Jeh Johnson when he was general counsel to the Department of Defense objecting to a subpoena threat we had issued.
But here the Trump White House provided staff support for the committee chair like it was fundraising call-time on a matter that is the declared subject of a committee investigation. In a blow to bipartisanship, neither Burr nor Nunes informed their Democratic counterparts before they took up the White House cause. These actions darken already bleak prospects of bipartisan cooperation. White House media coordination here undermines the legitimacy of the intelligence committee probes.
5) Partisan election incentives are too strong for regular order.
One of the core allegations roiling our government is Russian interference in the U.S. presidential election. Neither party is capable of handling this in a non-partisan manner because of the close nexus to election legitimacy and outcome. Members of Congress with an eye on winning reelection and a party majority really cannot be expected to provide the kind of independence we need for this fact-finding mission.
In my previous posts, I argued that allegations of Russian influence operations implicate two overlapping paradigms: domestic electoral politics and international geopolitics. As I said in December: “The ‘overlap’ stems from the partisan utility of the alleged Russian operations themselves. If Russia sought to help Donald Trump, he and his supporters have some political incentives to deny it in order to avoid a taint to his legitimacy. In turn, his critics have incentives to undermine the legitimacy of his election by Russian association.”
Looming political campaigns increase the need for independence from Congress and the Executive Branch. As divisive as our politics have been, we still have scores of distinguished Americans with the credibility to lead an investigation of this sensitivity and magnitude. We have former public officials, intelligence professionals, diplomats, veterans, congressional investigators, prosecutors, and academics who could answer the call.
We need a definitive investigation with bipartisan credibility like the 9/11 Commission. So far, with few exceptions, Hill Republicans are only offering the appearance of an investigation, rather than the hard-hitting, fact-driven, and independent investigation America deserves.