Where We Go From Here: The Russia Investigation

In the wake of James Comey’s termination, many are clamoring for the appointment of a Special Prosecutor and an Independent Commission to continue the Russia Investigation. The unfortunate reality is that any “independent” investigation, whether it is done by Independent Counsel, Special or Select Congressional Committee, or Independent Commission, cannot be conducted outside of the political process which is currently controlled by the Republicans.

No matter the path we choose, either Donald Trump himself or his congressional allies will have control over the formation, oversight and dismissal of any investigation.

The choices ahead all seem as if they may be no choice at all.

Independent Counsel

The laws governing the appointment, duties, oversight and removal of independent counsel are contained in 28 US Code chapter 40. Any independent counsel would be part of the Department of Justice and appointed by the Attorney General, or, as is the case here, by the Deputy Attorney General when the Attorney General is recused. Oversight power, on the other hand, lies with Congress. Independent Counsel must report to the appropriate congressional committees on at least an annual basis regarding his or her progress, findings and recommendations. 
A “Special Prosecutor” in the mold of Archibald Cox or Kenneth Starr is a vestige of another time.

The rules creating a Special Prosecutor, which were promulgated in 1977, expired in 1999. This Watergate-style Special Prosecutor was appointed by a judicial panel and had broad autonomy. The Independent Counsel the law currently allows for is much narrower in scope and authority, and his or her appointment is controlled entirely by the Department of Justice. There is no Judicial Branch involvement at all. Because the Independent Counsel’s office, just like the Special Prosecutor’s office, is part of the Executive Branch it could ultimately be dissolved unilaterally by the President.

A Select or Special Congressional Committee

Both chambers of Congress have the power to create select or special committees to perform a specific function that is beyond the normal duties of an existing standing committee. There is no functional difference between “special” or “select” committees, so I will refer to them here as “select committees” for brevity. These committees generally have an investigative function rather than a legislative function. A recent example is the House Select Committee on Benghazi which was formed to investigate the terror attack on the US embassy in Benghazi in 2012. At the completion of a select committee’s investigation, a report is filed outlining their findings and making recommendations. At that point the committee is dissolved.

Select or special committees are formed by resolution, which must be passed by normal procedural rules. In the House, the Speaker has authority under Rule 1, clause 11 to appoint the committee. The Speaker has broad discretion to appoint and remove members, but “shall appoint no less than a majority who generally supported the House position as determined by the Speaker… and shall, to the fullest extent feasible, include the principal proponents of the major provisions of the bill or resolution passed or adopted by the House.” In the Senate, the authority to create a select committee is found in Senate Rule XXV and the Senate’s President or President pro tempore can appoint members.

The primary obstacle to a select committee on the Russia investigation is that we would need a majority in either the House or Senate to establish the committee, and then we have Paul Ryan, Mike Pence or Orrin Hatch selecting the members.

Politically speaking, the most likely path for this committee is through the Senate, which has fewer actual humans to convince to reach a majority and by and large has more reasonable people than the House. As Mike Pence is intimately involved in the Russia investigation he should be recused, which means we would be relying on Orrin Hatch to appoint a fair, bipartisan panel to oversee the investigation.

An Independent Commission

An independent commission similar to the 9/11 Commission is created by law and must go through the regular law making process, which means a bill would need to be introduced, pass both chambers of congress and then get signed by the President. Unlike a Select of Special Congressional Committee, an Independent Commission can include members who are not elected officials. The appointment of members, scope of authority, goals and reporting requirements are governed by the language of the law creating the commission, whatever those may be. This seems like the least likely scenario as it would require Donald Trump himself to actively authorize it, or enough congressional support to override a veto.

Given these three options, an Independent Counsel that reports to a Senate Special Committee is likely our best bet for a fair and reasonably independent investigation into Russia’s involvement in our election and the Trump transition team’s ties to that involvement.

The future of this investigation may very well rest in the hands of Orrin Hatch — a man who could theoretically become President if the chips fell in just the right way.

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