Investigating Russia’s attempts to influence the U.S. election is a complicated question on its own, compounded by political pressure and shuffling leadership in the power structures at play.
Questions about President Trump’s links to Russia and his attempts to influence Justice Department reached a new fever pitch Tuesday evening when the New York Times reported that Trump had asked former FBI Director James Comey to stop investigating a member of his administration. According to the Times, Comey wrote in a memo that Trump asked him in February to “let this go,” of a federal investigation into his former national security adviser Michael Flynn’s ties to Russia.
This news, coupled with multiple leadership shakeups on separate Russia investigations, has only intensified calls for thorough probes. President Trump fired Comey. House Intelligence Chairman Devin Nunes stepped aside after he received classified documents on White House grounds. Attorney General Jeff Sessions recused himself after he misled Congress on his contacts with the Russian ambassador. Deputy Attorney General Rod Rosenstein now faces growing calls to appoint a special counsel.
There are multiple different types of investigations that can be mounted to look into the matter, each with slightly different powers and jurisdictions under different facets of the government.
“There are different purposes investigations can serve,” says Jordan Tama, associate professor at American University’s School of International Service. “One purpose is to simply find out what happened and help the public understand what happened during the 2016 election… The other purpose is to potentially bring criminal charges.” Because of that, he says, “there are benefits to having multiple investigations going on.”
Here’s what you need to know about the four main types of investigations.
A special counsel is appointed by the top Justice official but given some autonomy from the department, and crucially, it is the only one of these options that has the power to prosecute any criminal activity it uncovers. “There’s nothing as clean as an ultimate judgment from a prosecutor to either bring charges or to not bring charges,” says Harry Litman, lecturer at UCLA Law. While many people think of the independent counsel overseeing the Whitewater investigation into President Clinton in the 1990s that eventually exposed his affair with Monica Lewinsky, that was governed by a law that lapsed in 1999. Rosenstein would have more control over his prosecutor than the Justice Department did over the independent counsel in the Clinton era, with final say over the scope of the investigation and the power to fire the special counsel. While the special counsel’s prosecutorial power is unique among these types of investigations, its focus purely on criminal activity can also hamper the scope of its inquiry. “There may be nothing there criminally,” says Asha Rangappa, associate dean at Yale Law School and a former FBI special agent, “but that doesn’t tell you the true breadth of what might have been happening.”
Federal Bureau of Investigation
As the nation’s primary domestic intelligence agency, the FBI has significant power and resources to conduct investigations of this nature. Before he was fired, James Comey confirmed the FBI is conducting a counterintelligence investigation into Russian meddling in the U.S. election. Congressional investigations can use evidence and intelligence gathered by the FBI. Once the FBI’s investigation is complete, if it decided to open a criminal investigation as well, it would be up to the Justice Department to decide whether or not to prosecute anyone. But while the FBI has formidable investigatory power, there will be cautious consideration of whether to involve criminal charges, which would necessarily expose certain information, and little to no educational value to the public. “In counterintelligence, your leverage comes from not letting your adversary know what you know,” says Rangappa. “This is spy versus spy.”
An independent commission is a group of experts assigned to ferret out facts and publish a report of findings. “It’s a way of taking at least some of the partisanship out of the investigation,” says Tama. Independent commissions are created through legislation and signed by the President; in 2002 Congress and President George W. Bush created the 9/11 Commission, an independent, bipartisan group, to investigate the terror attacks. The 9/11 Commission was granted the authority to subpoena witnesses and documents, giving it significant fact-finding power. But these commissions are difficult to create have no power to prosecute. “[Their] main function,” says Tama, “is telling the story of what happened.”
Select congressional committee
A select congressional committee would be created and run by members of Congress and charged specifically with investigating the matter at hand. Both the House and Senate intelligence committees are already pursuing their own investigations into this issue, but a select committee could be bicameral and would focus only on this one topic. “A congressional investigation has broad fact-finding authority and is most suited to, quote, get to the bottom of it,” says John Q. Barrett, professor at St. John’s University School of Law and former Justice Department attorney. “Congressional committees can dig and go as deeply as they wish.” But in a fractured Congress and on such a politically charged topic, a select congressional committee could become mired in partisanship. “One of the common problems with congressional investigations is after the investigation has been done, assuming that they’re able to actually get through the investigation, there are often disagreements about what conclusions to draw,” says Tama. “Then there’s no clear consensus that the public can digest about what really happened. In this case where the president is vulnerable, politically there’s high stakes for both parties.”