After Comey, options emerge for independent Russia investigation

Talk turns to special prosecutors, counsels and congressional committees.

ByARLETTE SAENZ and BENJAMIN SIEGEL
May 11, 2017, 9:24 AM

— -- Galvanized by President Trump's firing of FBI Director James Comey, many politicians have increased calls for an independent investigation into the possible contacts between Russia and Trump associates before and after the 2016 presidential election.

A number of Democrats are calling for a special prosecutor or a special counsel to handle the investigations. While no Republicans are yet calling for a special prosecutor at this time — though at least one, Sen. Shelley Moore Capito, R-W.Va., told ABC that she's looking at that option "seriously” — there are a few calling for a special investigation by an independent commission or a select congressional committee.

Beyond being led by a new FBI director, an independent investigation into possible Russian meddling could be handled by a special prosecutor, a special counsel or a new congressional committee or commission.

Congress could pass legislation requiring a special prosecutor

Congress has the ability to pass a law requiring that an independent special prosecutor be appointed under certain circumstances.

The catch? President Trump would need to sign that legislation, and extensive bipartisan support would be needed to override a veto.

On Wednesday morning, Sen. Richard Blumenthal, D-Conn., said he would introduce legislation to ensure the appointment of an independent counsel but did not provide details on what that legislation might entail. Sen. Dianne Feinstein of California, the ranking Democrat on the Senate Judiciary Committee, said she will work with Blumenthal on that legislation.

What could that legislation look like? Lawmakers could reauthorize or pass a statute similar to one enacted in the wake of Watergate. The Ethics in Government Act of 1978 directed the attorney general to request a three judge panel to name a special prosecutor (later known as an independent counsel) if high level government officials faced allegations of certain federal offenses. The act expired in 1999.

Deputy Attorney General Rod Rosenstein could appoint a special counsel

After the act expired and new legislation became necessary for the appointment of a special prosecutor, the Justice Department set guidelines for creating the position of a special counsel, who is empowered to act as an independent investigator.

Because Attorney General Jeff Sessions said he would recuse himself from any campaign-related Russia investigation, the decision to designate a special counsel falls to Rosenstein.

While a special counsel would have some day-to-day independence, he or she would have to answer to the administration via Rosenstein, who would have the power to overrule and fire the special counsel.

Rosenstein, who was overwhelmingly confirmed by the Senate two weeks ago, did not commit to appointing a special counsel in his confirmation hearing, despite Democrats' repeated efforts to make him do so.

An independent commission or select congressional committee

Congress can pass legislation to form an independent commission or select congressional committee to investigate. An independent commission would include respected figures outside government, while a select committee would include members of Congress. Any congressional committee could be given a broad mandate, unlimited resources and subpoena power.

Either kind of committee would put together a report summarizing its investigation but would not be able to bring criminal charges, as a special prosecutor or special counsel could.

House Minority Leader Nancy Pelosi of California is calling on Republicans to support the Protecting Our Democracy Act, a bill introduced by Rep. Eric Swalwell, D-Calif., that would create an independent commission to look into Russian meddling in the election. Rep. Justin Amash, R-Mich., has said he's "reviewing legislation" that would create an independent commission.

Senate Majority Leader Mitch McConnell of Kentucky said Wednesday he opposed efforts to create a commission or committee, arguing it could curtail the work of committees already investigating alleged Russian interference in the election.

"Today, we'll no doubt hear calls for a new investigation, which could only serve to impede the current work being done to not only discover what the Russians may have done, also to let this body and the national security community develop countermeasures and war-fighting doctrine to see that it doesn't occur again," he said.

Other tactics lawmakers could use

Democrats could pressure Rosenstein and Republicans with obstruction.

They could use procedural tactics to bring the Senate to a standstill: They could disrupt votes, committee meetings and block nominations and major legislation to pressure Republicans into supporting the naming of a special prosecutor. On Wednesday the ranking Democrats on several Senate committees used procedural measures to postpone hearings.

In the House, Democrats have more limited tools at their disposal, beyond forcing snap votes on various Trump-related provisions. They could staged protests, such as their gun-control sit-in tactic last year, and disrupt the House chamber. But it is unclear what impact that would have.

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