Yeomans Work

Time to Step Up Your Game, Congress

September 28, 2017

As the Russia investigations advance, it becomes important to think about the denouement.

There will be time to discuss the merits of indictments and impeachment. For now, though, it is essential to think about preparing the public to absorb what emerges from Special Counsel Mueller and Congress. Most of this burden rests with Congress.

A troubling scenario holds that shockingly bad things emerge from the investigations and an uninformed, ill-prepared and overwhelmed public simply shakes them off as more noise in this already loud era. Trump has been working to make this happen by demeaning regularly the entire Russia enterprise as a hoax and a witch-hunt. His strategy seems clear: undermine the legitimacy of the investigations in preparation for the bad news to come.

Most likely, when indictments come, as it seems almost certain they will, and the investigation gets too near Trump and his family, he will lash out. He may try to fire Mueller. Since Department of Justice regulations require that the Attorney General or acting Attorney General do the deed, and Rod Rosenstein will not do it, we may see another Saturday Night Massacre or an attempt by Trump to jump the regulations and fire Mueller directly. He may also start issuing pardons. While doing so, he will depend on the groundwork he has already laid to claim that Mueller’s investigation is politically motivated and, therefore, illegitimate. Trump will also blame the press for fueling the allegations against him. His hardcore base will swallow all of this. But the success of the effort to remove Trump or even to defeat him for reelection will depend on persuading the 10% to 15% of voters who supported Trump, but would be disturbed if he shot someone on Fifth Avenue. Those voters need access to information to prepare them to make judgments.

Thus far, the various investigations have yielded surprisingly little public information. This dearth is partially attributable to Mueller’s admirably tight shop. Prosecutors generally work most fairly and effectively out of the spotlight. Grand juries work in secrecy. Too much transparency can undermine the investigation by tipping off witnesses and blowing leads. It can also unfairly tar people caught up in the investigation who are not subsequently prosecuted.

Therefore, in an investigation of the magnitude and public consequence of the Russia inquiry, the lead falls to Congress to create a public record that paves the way both for possible indictments or impeachment, and for legislation that may be necessary to prevent Russian interference in the future. Absent education of the public, none of this will happen. In previous scandals of this magnitude – such as Watergate and Iran/Contra — Congress stepped up. Indeed, Congress overreached during Iran/Contra and unintentionally impeded prosecutions, but Congress can avoid similar problems.

Several factors have contributed to Congress’s shortcomings. First, partisanship has complicated the task for Republican committee chairs. As part of the Republican Party’s Faustian bargain to prop up Trump so long as he would sign their bills, Republican leaders have been slow to take steps that will anger or undermine the President. Devin Nunes, the Chair of the House Intelligence Committee, disabled himself by serving as a pawn in a White House scheme to undermine the investigation. The Committee has since moved forward, but not – insofar as the public can tell — with sufficient commitment. Chair Goodlatte of the House Judiciary Committee has made it clear that he wants no part of the inquiry. The Senate Judiciary Committee got off to a very slow start, as Chair Grassley tried to ensure – for largely partisan reasons — that any inquiry would also look at Hillary Clinton and Loretta Lynch. Only the Senate Intelligence Committee appears to have forged ahead with a serious, bipartisan investigation. As the 2018 elections approach and legislative failures mount and the bargain appears less beneficial, Trump’s partisan defenders may waiver, but that hasn’t happened yet.

Even in the three committees conducting investigations, far less information has been made public than should be expected. One reason for this in the two Intelligence committees is institutional. They are accustomed to operating in secret. Traditionally, many of their hearings are closed. Sometimes that is necessary to protect classified information, but it too easily can become standard operating procedure.

In addition, while it is common and appropriate for investigating committees to conduct closed-door staff interviews of witnesses, they must guard against abuse of the practice. Both Intelligence committees and the Senate Judiciary Committee have used this tool to question important witnesses, including Jared Kushner, Paul Manafort, Donald Trump Jr., and Roger Stone. These witnesses, however, have been permitted to abuse the process by releasing lengthy and exonerating public statements before their interviews, while relying on staff and members not to discuss the actual content of the interviews. Because the interviews are voluntary, witnesses can refuse to answer questions. They do not inform the public or fully inform the committees unless they are followed by public testimony. Only if witnesses appear under subpoena can they be forced to answer questions or assert their Fifth Amendment rights to remain silent. Either action – taken in a public forum – is tremendously enlightening for the public and necessary for the success of the investigations.

It is time – past time – for Congress to bring more of this process into the public sphere. The health of our democracy depends on it.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.