If Congress did its job, nobody would be talking about another special counsel.
When House Intelligence Committee Chairman Devin Nunes subpoenaed documents and testimony from the FBI and Justice Department, he was stonewalled for months. In a last-minute bid to circumvent the committee’s demands, FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein met with Speaker Paul Ryan. The two men ended up agreeing to comply with the subpoenas—but only because Mr. Ryan informed them they would be found in contempt if they did not.
This kind of stonewalling has fed the agitation on Capitol Hill for a second special counsel, who would look into everything from the FBI’s handling of the Clinton email investigation to the use of the Christopher Steele dossier to obtain warrants to listen in on members of the Trump campaign. The calls are mistaken. But the frustration is real
.. But missing here is any discussion of the powers Congress itself has, including but not limited to the subpoena and contempt powers that ultimately forced Mr. Wray and Mr. Rosenstein into compliance.
.. If it only has the backbone, Congress can get what it wants out of the federal bureaucracy. Several executive-branch officials—including Justice’s Bruce Ohr and FBI lovers Peter Strzok and Lisa Page —will soon testify before the House Intelligence Committee. Possibly some or all of them will invoke their Fifth Amendment right against self-incrimination.
If Congress insists on its prerogatives, however, that wouldn’t be the end of the story. Witnesses who plead the Fifth can still be compelled to testify. The price is that the compelled testimony, and evidence derived from that testimony, couldn’t be used against the witness in a prosecution.
A special counsel might not like this, given his emphasis on indictments and prosecutions. But Congress should, because its end goal is political accountability. Which would be up to the American people to impose after learning exactly what abuses have transpired.
Let Mueller Keep Digging
If the president fires Mr. Mueller now, it will look as though he has something to hide; if another special counsel is appointed, it will further diminish the proper investigative authority here—i.e., Congress. There are better ways forward.
.. If it’s true that there is no obstruction or Russian collusion, his overriding interest lies in full transparency. In a recent piece for National Review, former federal prosecutor Andrew McCarthy asks why Mr. Trump doesn’t just order the declassification of material such as the FBI’s application for Foreign Intelligence Surveillance Court warrants to wiretap Trump associates, so Americans can see for themselves whether the FBI used or misused information from the infamous Steele dossier. Good question.
.. During the IRS scandal, Lois Lerner rode off into the sunset without testifying because Congress allowed the Obama Justice Department to determine her fate. Ditto for John Koskinen, the IRS commissioner who happily served out his time when Congress should have impeached him for his falsehoods and obstructionism.
.. If executive branch officials continue to play games with subpoenas, Congress needs to give them a taste of the legislature’s powers, whether by cutting agency budgets, impeaching directors or holding uncooperative officials in contempt. In this regard it’s good to know Devin Nunes, chairman of the House Intelligence Committee, is still pursuing contempt citations for Mr. Wray and Deputy Attorney General Rod Rosenstein. A contempt vote by the full House would of course depend on Speaker Paul Ryan, who complained in October about FBI “stonewalling.”
.. So forget firings and new special prosecutors. Let the president use his executive authority to make public the evidence that would tell the American people what really happened.