Monday, May 15, 2017

Special prosecutor/Independent commission? What's the difference?

Several terms are being tossed around about the way forward in the investigation of the Trump campaign and any connections with Russia:   special prosecutor, select congressional committee, and independent commission.   These can be confusing, and they have varying advantages and drawbacks.

First, what we have now:
   a.  FBI investigation.   The FBI is relatively independent -- and famously insistent about maintaining that.   It answers to the Department of Justice and the Attorney General, both appointed by the president.   So, even the FBI is ultimately somewhat subject to the president's pleasure -- as shown with his firing of Comey -- although it could be politically very dangerous for him to abuse that authority.   That is ground zero right now.

   b.  House Intelligence Committee and Senate Intelligence Committee.  Each committee is conducting (more or less) its own investigation, although the House committee got derailed when its chair, Rep. Devon Nunes seemingly became Trump's patsy in a concocted scheme to "find" fake evidence to support Trump's goofy claim of Obama's "wiretapping" Trump Tower.   With a new chair now, supposedly that investigation is getting going again.
       The Senate investigation seems to be moving along now, having issued some subpoenas.   They seem to be focusing on "following the money trail," specifically Donald Trump's money trail.   (More about this in a later post.)

   c.  Senate Subcommittee (of the Justice Committee) on Crime and Terrorism, chaired by Sen. Lindsey Graham.   This is the group that Sally Yates testified for.

   d. House Committee on Oversight and Government Regulation.   This committee could look into some of this, but Chairman Jason Chaffetz (R-UT) deferred to the House Intelligence Committee's work -- that is, before he suddenly and suspiciously decided to resign.  Rumor says he may be going to Fox Five as a news commentator.

What about turning it over to an independent investigator?
   The argument for doing this is that the others all have the risk of becoming influenced by political biases.  The FBI is less so, but we've just seen that it is not completely independent from the president's influence and the hiring and firing of its director.    The degree to which it is independent rests with the character and determination of individuals, not on the statutory structure.   So what options are there for greater independence?    What follows is a summary of what Vox News ( prepared to explain just this question.

   a.  Special prosecutor/special counsel.   Following the Watergate scandal, a law was passed setting up a mechanism for the appointment of a special prosecutor that would be independent of the Justice Department and the president.   A three judge panel, chosen by the Chief Justice of SCOTUS from among those justices on the D.C. Circuit Court of Appeals, would appoint this special prosecutor.   Unfortunately, congress allowed this law to expire in 1999 without renewing it.
      So currently, a "special counsel" would simply be chosen by the Attorney General -- except that AG Jeff Sessions has recused himself from any cases involving the Trump campaign because of his own involvement with that campaign.   So the appointment would be made by the new Deputy Attorney General, Rod Rosenstein, appointed by President Trump and confirmed by the Senate with bipartisan support.    Just two days ago, Rosenstein said that he did not see the need at this point for a special counsel but that he would be open to it in the future.
     Rosenstein has been on the job as Deputy AG for just over two weeks.   During confirmation hearings, and by reputation, he impressed senators with his integrity, professionalism, and his reputation for independent dedication to the truth.
    However, since then, Rosenstein got drawn into the firing of Comey.   Here's how that came about.  Rosenstein did genuinely disapprove of the way Comey had handled the Clinton email case.  So, when Trump called him and AG Sessions in to discuss Comey, Rosenstein told him;  and Trump asked him to put it in writing.  He wrote a three page critique, which did not include a recommendation about termination.   But Trump then included this critique with his letter firing Comey;  and Trump wrote in his cover letter that he was following the "recommendation" to remove Comey as FBI Director.
     Reportedly Rosenstein resented having the firing blamed on him, when in fact he had made no recommendation;  and he threatened to resign -- which may be what then led to the change in the story that Trump was telling.  [NOTE:  This was reported by the Washington Post, but Rosenstein has denied it's truth.]  But it is troubling that Trump might be able to manipulate him again in the future.   A special counsel in the FBI would still be answerable to Rosenstein and ultimately to Trump.   If the appointment were still made by judges, as in the expired law, this would be much better.   As it is, the degree of independence depends on the individuals involved.  As long as Trump is one of them -- with ultimate power -- that's not good enough.

   b.  An Independent Commission.   This would follow the pattern of the 9/11 Commission, made up of experts in appropriate fields (often former Attorneys General or retired judges, for example) -- who are not current members of Congress or Department of Justice.  It is created by an act of Congress and signed by the President;  and it would be bipartisan, perhaps as with the 9/11 panel with co-chairs, one Republican and one Democrat.  It would have subpoena powers, but it's purpose would be to investigate and write a report.   It would not have direct enforcement powers;  and indictments would have to come from their recommendations to the Justice Department.   Thus, it's focus is fact-finding, not primarily criminal investigation and prosecution.   This is more of a long backward look at what happened to devise policies to prevent repetitions.  It's not so good at tracking down guilty people still in power and charging them.

   c.  A Special Congressional Committee.   This would be a special committee, made up of members of congress, for the sole purpose of investigating the Trump/Russia case, with subpoena powers.   How it would differ from the two Intelligence Committees already operating is that this special committee would only deal with this one case, and it would dissolve when its report was completed, while the Intelligence Committees are ongoing and have many other things to be investigating at the same time.

So what is needed?   The key issue to me is that, whatever the structure, what we need most is vigorous, independent investigation, not subject to being overruled or limited by the interested parties.   In this case that would primarily be Donald Trump and his White House associates.

Perhaps Rosenstein is correct to wait a bit.   Let's see who is appointed as the new FBI Director.   If that person has a reputation for being independent, for standing up to power, and for being a good leader -- then let's see where that goes.   We could always have another investigation later -- as was true with the 9/11 investigation.


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