Special prosecutors corrupt; independent counsels corrupt absolutely.
The main headlines of the past week—Is Donald Trump attempting to undermine Mr. Mueller? Will Trump Fire Mueller?—all speak to the challenge a special prosecutor poses to the constitutional authority of the president.
Far less scrutiny has been devoted to the challenge Mr. Mueller poses to the authority of the legislative branch. In this case, ironically, the challenge stems less from the aggressiveness of the special prosecutor than from the meekness of Congress. In between their public tributes to Mr. Mueller’s sterling character, too many in Congress seem to worry more about how they might be affecting his investigation than about what his investigation might be doing to theirs.
.. Mr. Mueller, an unelected appointee, had the Trump memos written by former FBI Director James Comey even as the FBI was refusing to release them to the elected representatives of the American people.
.. Here a May 2017 review from the Congressional Research Service is illuminating. Although witnesses before a congressional committee do have the right to invoke the Fifth Amendment, the House can get a court order directing the witness to testify so long as the threat of prosecution for that testimony is removed. Mr. Mueller might not like this, but that shouldn’t stop Congress from using a power designed to extract information rather than punish.
.. Even more intriguing, sensitive or privileged client information is not exempt from congressional subpoena. This might prove especially fascinating in the case of former Trump campaign manager Paul Manafort, who has had business dealings with a pro-Russia Ukrainian political party. Ditto for Glenn Simpson, whose Fusion GPS commissioned what became the Christopher Steele Russian dossier on behalf of political clients.
.. Not to mention the many other powers of Congress, including impeachment and the purse. The point is, Congress has many ways to get to the bottom of the Russia story and hold people accountable—if it so chooses.
.. In Anderson v. Dunn (1821), the Supreme Court correctly noted that without the power to imprison those found in contempt, Congress would be “exposed to every indignity and interruption, that rudeness, caprice or even conspiracy may meditate against it.” Two centuries later, the different examples of Ms. Lerner and Mr. Mueller both point to a brand new indignity—which Congress inflicts on itself when it is too timid to assert its own powers.