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The specifics of how Congress “investigates” Russian hacking will make a huge difference

House Democrats want a much more aggressive investigation into Russian hacking than Republicans appear willing to go.

Flags Lowered To Half Staff On Capitol Hill In Honor Of John Glenn
Flags lowered this month at the Capitol in honor of John Glenn
Photo by Mark Wilson/Getty Images

Republicans and Democrats on Capitol Hill agree on something: The Russian government’s interference in the presidential election needs an investigation.

The agreement ends there.

The parties are pushing very different approaches for how to investigate. Democrats are calling for the most aggressive option — a special bipartisan committee somewhat similar to the 9/11 commission that would act independent of the normal course of congressional business and give them subpoena powers they’d otherwise lack. Sen. Mitch McConnell and other Republicans think that goes too far. Instead, they want to go a standard route, deferring investigations to existing committees.

The process here matters. The commission would be tasked solely to investigate one issue and likely release a public report at the end. Party-controlled committees operate with other issues at play, politics and policy included. The extent they’ll investigate Russian interference and release its findings is more of an open question.

The early jockeying foreshadows the kind of relationship congressional Republicans plan to have with the new Trump administration. To liberals, the possibility of Russian meddling looks like an obviously important issue demanding the maximum bipartisan response. McConnell’s weaker push suggests he’s not in the market to as aggressively take on Donald Trump, who has dismissed the questions of Russian interference as a partisan attempt to delegitimize his presidency and made unusually public attacks on the CIA.

The multiple investigations taking shape into Russian meddling

Democrats want to move fast, hoping to grab the momentum.

“There’s a fear that if we don’t do anything now, this will become permissive and normalized — and we would be willingly watching our democracy really evaporate,” Democratic Rep. Eric Swalwell said in an interview. He’s introduced a bill that would commission a panel of 12 investigators, six from each party, exclusively devoted to getting to the bottom of what exactly occurred.

“That’s why I’m urging people to act now — because the concrete has been poured, and once it’s hardened there’s no going back.”

All of these investigations will deal with similar evidence, involve the same federal agencies, and cover a lot of the same ground. But it’s crucial to distinguish between which investigation is being discussed, because they’ll each correspond with different investigators and different goals, means, and powers.

“There are three big questions that need to be asked: One, who was responsible for the hacking (of the Democratic National Committee)? Two, was the party responsible doing so because they had a preferred candidate? And, three, was the party working with that preferred candidate’s campaign?” Swalwell says.

  • The administration’s own investigation. On Friday, President Barack Obama’s administration ordered the federal intelligence agencies to conduct a “full review” of Russian meddling and release it to a “range of stakeholders,” including Congress, before Trump’s inauguration. This is the presidential investigation, and Obama has ordered it to conclude before he leaves office.

It’s unclear the extent to which the president will make its results public, but it won’t entail the high-profile committee hearings that could put witnesses under the spotlight. “The presidential inquiry will probably be done quietly, and then some report will be issued that may or may not get a ton of attention,” says Eric Schickler, a political scientist at Berkeley. “Whereas in a congressional investigation, they can force people to testify in front of cameras and publicize what's going on in this case. It can be a much more powerful tool.”

  • How Republicans want to approach the issue: part of regular Senate work, and behind closed doors. On Sunday, Republican Sen. John McCain got behind a congressional investigation spearheaded through existing Senate committees. (McConnell and Speaker Paul Ryan have also backed the committees as the right vehicle for exploring the Russian interference question.) That effort would be spearheaded by the Senate Intelligence Committee or the Armed Services Committee, or some combination of the two. One fear for Democrats here is that this will allow the investigation to get bogged down in other committee work. Traditionally, investigative work done through the existing committee structures are also less likely to be disclosed.
  • But Democrats want a big, bipartisan committee dedicated only to this. In the House, Swalwell wants to probe Russia’s role in election interference through the formation of a new bipartisan “select committee” that would be formed with the entire purpose of investigating Russia’s role in the election and release an extensive report of its findings within 18 months. Similarly, three Democratic senators are calling for a similarly independent committee composed of experts that would have subpoena powers and produce a public report.

The Senate proposal is explicit that the members of the committee would not be members of Congress, but instead outside independent investigators chosen by leadership of both parties. That would make it more like the 9/11 commission (which was composed of nonpartisan officials) than the Benghazi committees, which were led by congressional Republicans. Meanwhile, the House proposal only specifies that the members of the commission be chosen by the leadership of both parties.

Still, for now at least, these also looks like the least likely to come to fruition.

The debate over what kind of committee should investigate Russian interference

McConnell and Speaker Paul Ryan have so far rejected the calls for a bipartisan select committee. They’ve instead said that the already existing Senate committees are equipped to probe Russia’s role in election-related hacking.

At a press conference yesterday, for instance, McConnell said the Senate Intelligence Committee “is more than capable of conducting a complete review of this matter.”

The objection to an open, bipartisan investigation might be frustrating to those who saw how a select committee was formed to investigate Benghazi, but it’s not particularly surprising. Over the past several decades, there’s been a growing trend of congressional oversight of presidential administrations to be riven almost entirely along partisan lines. That suggests there will be little appetite for congressional Republicans to probe their president-elect over this matter.

“If Republicans want to investigate their own president, there's very little precedent for that,” says Michele Swers, a Georgetown political scientist who specializes in studying Congress. “What's happening here is what’s known as ‘fire alarm oversight’ — and in the past that’s been very political.”

Moreover, it’s not as if Republicans have no response here. The Senate Armed Services Committee may be controlled by the GOP, but it is chaired by Sen. John McCain, who is as hawkish as they come on Russia and foreign policy. Even incoming Democratic Senate Minority Leader Chuck Schumer has publicly backed McCain and said the committee is well-equipped to investigate the scandal. A Schumer spokesperson says in an email that he hasn’t expressed a preference for a select committee, suggesting a potential divide between House and Senate Democratic leadership over whether a select committee is necessary.

“It's a very good committee and works in a bipartisan way,” Schumer said on Meet the Press. “It should be bipartisan and John McCain leading it. I have a lot of faith in him.”

Such an investigation would have broad powers, but also significant limitations. The Senate investigations would have subpoena power, the ability to force witnesses to testify in public, and could release lengthy public reports that may finger Russia’s role in the election and embarrass Trump. Crucially, however, those powers would be held exclusively by Republicans; Democrats would have no ability to issue subpoenas of their own or decide on which witnesses to compel to testify.

For now, Republicans are maintaining that establishing a separate select committee would merely be duplicative — and “do not see any benefit in opening further investigations,” as House Intelligence Chair Devin Nunes said in a statement.

Why Democrats want a select committee investigation

Still, many Democrats think the Republicans are giving Trump cover by refusing to back the select committee investigation. The biggest reason why is simply time and resources — Swalwell’s bill calls for a full staff of 12 people who would make the investigation their priority, whereas the Senate committee members would simply be investigating in addition to their other responsibilities. (The Democrats’ bill in the Senate — sponsored by Sen. Dianne Feinstein, the ranking member of the Senate Intelligence Committee, and Democratic Sens. Ben Cardin and Patrick Leahy — similarly frees up staff to focus exclusively on this investigation.)

“This is an important enough committee to solely focus on this one issue,” says Ohio Rep. Tim Ryan in an interview. “If it’s just led by the Armed Services Committee, they have a lot of other things going on — the day to day where they’ll be dealing with Syria and Aleppo and Turkey. [The select committee] would move it out of that atmosphere.”

Another part of what happens here is that once members of Congress are designated to focus on the issue, they become invested in the project in a way a committee simply isn’t.

Moreover, it’s not clear that the current Senate committees are particularly interested in freeing up resources to make their work possible. (Senate Intelligence Chair Richard Burr told Politico in a statement that he is not “launching any kind of new wide-ranging probe” and his own committee remains “concerned about Russia’s actions.”)

Is partisan fighting inevitable here?

Some Democrats on Capitol Hill have also voiced the fear that a committee investigation led by a Republicans will not have the credibility with the public that one written by a bipartisan team might.

There’s certainly a degree of self-interest at work here — if a report shows that Russia helped Trump win, Democrats will almost certainly use it to cast doubt on the legitimacy of his election. Being able to cite a report signed off on by members of both parties will give them cover to turn it into a cudgel against the president-elect.

Democrats also worry, with some justification, that a committee report from a Republican-led panel might never be made public or could be released with key findings redacted.

Those bad feelings come from their experience with the high-profile investigation into the CIA’s torture program, which was conducted by the Senate Intelligence Committee. Feinstein, then the head of the panel, wanted to make public the entire 7,000-page report, which found that the CIA’s use of torture hadn’t produced any major intelligence coups and was far more brutal than previously known.

Sen. Richard Burr, then the ranking member of the committee, pushed to keep the entire report private; ultimately just 528 pages were released in 2014. Breaking with tradition on the normally nonpartisan panel, Burr and his fellow Republicans refused to sign off on the report’s findings, deriding it as a partisan exercise that could harm US national security by sparking renewed anti-American feelings in Muslim and Arab countries.

“Top Republicans described the report as a politically charged Democratic document that distorted events, contending that the intelligence obtained through the harsh tactics had helped in the disruption of terrorism plots and in the search for Osama bin Laden,” wrote the New York Times at the time. “Ms. Feinstein believed the compromise was worthwhile if it meant being able to release the report before the Republicans took control of Congress.”

A select committee appointed along bipartisan lines could help erase that fear. There’s no guarantee that the select committee would be weighted equally between the parties, as Swalwell’s bill calls for — the Benghazi select committee, for instance, had more Republicans than Democrats and broke along partisan lines when it came time to issue its findings. Traditionally, though, independent panels like the 9/11 commission give both Democrats and Republicans the same numbers of members and allow both sides to issue subpoenas and call witnesses.

But Democrats say it’s worth trying.

“Any talk of elections or partisan outcomes will take away the impact of what the investigation may come up with,” Ryan says. “I think it’s important that we not come to any conclusion saying this cost the election to the Democrats or any of that — that puts it into the political realm. Which is exactly where this needs not to be.”