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The Russia Affair: To commission or not?

That is the question that should be facing Congress and the White House

WASHINGTON, D.C. — To commission or not to commission? That is the question facing Congress and the White House regarding how best to investigate Russia’s meddling in the 2016 elections.

Actually, let me rephrase that: That is the question that should be facing Congress and the White House on the issue of how best to investigate Russia’s meddling in the 2016 elections.

There is no indication, however, that the independent commission question is receiving any serious attention on either end of Pennsylvania Avenue since Republicans control both ends of that famed thoroughfare (although “control” is too strong a word for the mastery Republicans are able to exert on anything these days).

On the other hand, two-thirds of the American people support an “independent commission investigating the potential links between some of Donald Trump’s campaign advisors and the Russian government,” according to a recent Quinnipiac Poll. And Democrats in Congress want a commission and/or a special prosecutor. It is still an open issue.

Democrats might want to be careful what they wish for because the history of independent commissions — there are several types — is mixed. Republicans might want to reconsider their knee-jerk rejection of committing to a commission for the same reasons. The partisan fallout of commissions and inquisitions is not always predictable. Nor is their usefulness in explaining or investigating their assigned topics.

The most compelling reason to form an independent commission is decidedly not to investigate whether Trump and/or any Trump associates or staff colluded with Russian meddling. In the end, that is a criminal or prosecutorial matter. Congressional committees and independent commissions don’t indict evildoers but they can surely muck up cases against them. The criminal part should be left to the prosecutorial pros — the FBI and the Justice Department. In my mind, it is obvious the Justice Department ought to appoint a special prosecutor to oversee that investigation; both the attorney general and the director of the FBI already are tarnished and conflicted.

The case for some kind of commission will be stronger if a special prosecutor is not appointed, which seems likely.  Commissions and prosecutors, however, have different missions that aren’t always compatible. A prosecutor is not a substitute for oversight.

In the Russian affair, there are obviously urgent questions far beyond the purview of a criminal investigation, whether FBI Director James Comey or a special prosecutor leads it. They include: Were Comey’s various public pronouncements about the investigation of Hillary Clinton’s emails improper or unethical? Should the Obama administration have made public more of what it knew about Russia’s operations in the U.S. before the election? Did the intelligence community do a competent job of detecting and rebutting Russia’s attempts to undermine the elections? Are the intelligence community and election oversight organizations prepared for the next elections in 2018 and 2020?

Now, isn’t it the job of the House and Senate intelligence committees to answer precisely those kinds of questions? Indeed it is.

The question then is whether those committees have enough credibility within Congress and with the public to give trusted answers. The answer for the House Intelligence Committee is absolutely not. The answer for the Senate Intelligence Committee is probably not.

Together, these threads tie up the case for an independent commission fairly well. A criminal investigation, unless led by a special prosecutor, will be tainted and it can’t address policy questions. The standing congressional committees already are locked in partisan combat at a time when Congress is held in public contempt anyway. The question of Russian interference in American elections is obviously commission-worthy.

So what kind of commission? There are three different set-ups we refer to as independent commissions: presidential commissions, obviously are appointed by the president (the Warren Commission on the JFK assassination, the Rogers Commission on the Challenger disaster); “joint” commissions are created by Congress (the 9/11 Commission led by Tom Kean and Lee Hamilton); and special committees of Congress like the Senate Watergate Committee and the Iran-Contra committees.

The record of commissions isn’t so strong that it is a slam-dunk case that we need one now. Some have been shallow, partisan or interfered with criminal prosecutions. Others met pressing national needs.

Philip Shenon, who has written histories of the Warren Commission and the 9/11 Commission, recently wrote that history doesn’t offer “much hope that an independent commission would accomplish the Democrats’ goals, at least not if those goals include getting to the bottom of this mess in a timely fashion and holding individuals accountable for their wrongdoing.”

In the real world, Trump will not appoint a presidential commission and the Republican Congress won’t sanction either a joint commission or a special committee of Congress — not unless a stash of smoking guns turns up that gives them absolutely no choice.

The upside of this partisanship is the country might be spared a long political circus. The downside is that we may never know the full story of the Russian escapades of 2016 — and we’ll still have to endure a long political circus.

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