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The 3 ways to do an independent investigation of Trump and Russia, explained

Special prosecutors, congressional committees, and independent commissions, oh my!

Now-former FBI Director James Comey stands at FBI headquarters on June 23, 2014, in Washington, DC. 
Mark Wilson/Getty Images

President Trump’s firing of FBI Director James Comey, the man in charge of the investigation into the Trump team’s ties to Russia, has sparked immediate calls for an independent investigation into the scandal.

Democrats argue that the next FBI head wouldn’t be able to fairly pursue the probe because he or she will have been directly appointed by the man he or she would be investigating — and with the help of Attorney General Jeff Sessions, who has been ensnared in the scandal himself since lying to Congress, under oath, about his dealings with the Russian ambassador to the US.

They also say that the House and Senate panels conducting their own investigations can’t necessarily be trusted to follow the evidence because both are led by Republicans unlikely to turn against a president from their own party.

The answer, Democrats say, is to take the responsibility out of the hands of the FBI and Congress by appointing a special prosecutor, special congressional committee, or independent commission to launch their own investigation.

Here’s New York Democratic Sen. Kirsten Gillibrand on Tuesday night: “No more excuses. We need an independent special prosecutor to investigate the Trump Administration’s ties to Russia.”

And here’s Florida Democratic Sen. Bill Nelson, also on Tuesday night: “Now it is more clear than ever that we need an independent commission to get to the truth of Russia’s interference with our election.”

But here’s the problem. Special prosecutors, special congressional committees, and independent commissions are three very different things with different purposes, different investigative powers, and different degrees of independence. They tend to get all jumbled together when we talk about this stuff — so if you’re confused, you’re not alone.

So what’s the difference?

What follows is a quick, simple guide to the three different options for an independent investigation into the Trump-Russia connection going forward: how they’re appointed, which powers they have, and, crucially, which ones they don’t. Republicans in Congress are currently rallying around Trump and insisting that the existing congressional probes are enough. If they change their minds, though, these are the options they’d have to choose from.

1) Special prosecutor/independent counsel/special counsel

In 1978, in the wake of the Watergate scandal, Congress passed the Ethics in Government Act, creating something called a “special prosecutor” (also called an “independent counsel”) who would be independent from the supervision and control of the president. The role was to investigate and prosecute — in a court of law — possible violations of federal criminal law by high-level federal officials.

That’s important to understand: Unlike the other two types of independent investigations we’ll be looking at here, special prosecutors and special counsels (I’ll explain the difference there in a minute) are the only ones who can actually prosecute individuals for committing crimes. The rest just basically publish reports with their findings.

The 1978 law also created a special three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, appointed by the chief justice of the Supreme Court, that would be responsible for appointing and overseeing the special prosecutor when formally asked to do so by the attorney general.

Under that law, only the attorney general had the authority to request that the panel appoint a special prosecutor. Majorities on either the House or Senate Judiciary Committee could formally ask the attorney general to file a request, but — because of the separation of powers enshrined in the Constitution — the attorney general could still technically say no. They would merely have to tell Congress why they were refusing to do it.

The law creating special prosecutors expired in 1999, when Congress chose not to renew it. That meant that the whole mechanism for establishing an independent special prosecutor went away.

So the Justice Department decided instead to use its own powers to create something similar within the department itself: a “special counsel.” This person is appointed directly by the attorney general (not an independent three-judge panel, like before) and — this is the important part — is thus directly answerable to the attorney general. This person can pursue criminal indictments in grand jury investigations, but the attorney general can fire them at any time and overrule any decisions they make when it comes to investigating or prosecuting the case.

In other words, the special counsel is far, far less independent than the earlier version was. Which ... kind of defeats the purpose of having a special counsel in the first place.

So that’s what we have today. In this case, Sessions has already formally recused himself from participating in any Trump-Russia investigations, so the next person in line, Deputy Attorney General Rod Rosenstein, would be the one with the authority to appoint a special counsel.

If that name sounds familiar, it’s because Comey’s firing came after Rosenstein sent a letter to the White House on Tuesday recommending that Trump fire Comey. In other words, Rosenstein is right smack in the middle of the whole mess that sparked the calls for a special counsel to be appointed in the first place.

Rosenstein may still choose to appoint a special counsel, but even if he did, that person would answer to him — and, by extension, President Trump. Which, again, kind of defeats the whole purpose.

The other option is for Congress to pass another law like the one it passed back in 1978, creating a truly independent special prosecutor. However, given that Republicans control both the House and the Senate and have largely rallied around the president following Comey’s firing, that seems pretty unlikely.

Indeed, on Wednesday Senate Majority Leader Mitch McConnell (R-KY) flatly rejected calls for an independent prosecutor, stating that a new investigation “could only serve to impede the current work being done.”

In fact, he rejected any sort of new investigation, not just a special prosecutor — which brings us to the next option.

2) Independent commission

Even before the Comey firing, top Democrats including House Minority Leader Nancy Pelosi and Senator Minority Leader Chuck Schumer had repeatedly called for the creation of a “9/11-style commission” into the Trump-Russia issue.

The 9/11 Commission was an independent, bipartisan commission of experts created by congressional legislation and signed by President George W. Bush in late 2002 to investigate the terror attacks and write a report on their findings. It was made up of 10 commissioners and 75 staff members — including attorneys, analysts, researchers, and subject matter experts.

Although the 9/11 Commission was made up of experts, not members of Congress or the Justice Department, it was granted the authority to subpoena witnesses and documents and to use federal courts to ensure compliance. This was an important but controversial decision, because it gave the commission a lot more power than it would have otherwise had to access documents and force people to testify.

Still, the commission’s goal was ultimately to investigate facts and write a report — that’s it. And while uncovering and publishing facts is in itself a worthy endeavor, the commission had no ability to prosecute anyone for wrongdoing.

Congress and President Trump could decide to establish a similar commission to investigate and publish a report on the allegations of collusion between Russia and the Trump campaign. However, for reasons that should be blindingly obvious at this point, it’s a bit difficult to see the president ever doing that.

3) Special congressional committee

“I have long called for a special congressional committee to investigate Russia’s interference in the 2016 election,” said Republican Sen. John McCain in a statement on Tuesday. “The president’s decision to remove the FBI director only confirms the need and the urgency of such a committee.”

But both the House and Senate Intelligence Committees are already pursuing simultaneous investigations into the Trump-Russia allegations. So what, exactly, would this “special” committee do that those other two committees aren’t already doing?

It’s not entirely clear. Just like the other two committees, this special committee would be set up and run by members of Congress, and just like the other two committees, this one would have the power to subpoena witnesses and documents related to the matter at hand.

The main difference is that the special committee would be appointed to specifically look into the Trump-Russia case and most likely publish a report on its findings, instead of having to do that while also still performing all the other regular duties the House and Senate Intelligence Committees are responsible for. The special committee would also be dissolved once it was finished with its duties.

These sorts of committees have been set up before: There was the Senate Watergate Committee in the 1970s, and the joint House-Senate 9/11 committee set up right after the 9/11 attacks.

This was separate from the 9/11 Commission discussed above — in fact, this committee finished its work before the 9/11 Commission was even created. National security legal scholar Daniel Marcus notes in a 2011 legal brief that it was the unsatisfying results of the joint House-Senate 9/11 committee that led 9/11 victims’ families to pressure Congress to create an independent commission focused on the terror attacks.

Which brings us back to the central problem here: Given that there are already two congressional investigations into the Trump-Russia allegations going on, it’s not clear that standing up yet another congressional committee would provide the American people with any more satisfying results than we’ll eventually get from those other ones.

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