More than ever, Justice must demand a special prosecutor for Trump-Russia probe

“They’ll be back in 2020. They may be back in 2018.”  This is not a quote from a sci-fi film about the return of the three-headed alien.  Rather, it’s a sober statement from Jim Comey, the Director of the FBI at Monday’s hearing before the House Permanent Select Committee on Intelligence.  About the Russians.  And the likelihood that they will meddle, or at least attempt to meddle, in future U.S. elections.

This wasn’t the only sober revelation of the hearings earlier this week. In a rather stunning blow to the president’s credibility, Comey also made clear that the FBI has “no information” that supports the president’s claims that he had been wiretapped by the prior administration, adding that “we have looked carefully.”  The same goes for all other components of the Department of Justice.

{mosads}And Comey confirmed that the FBI is actively investigating the Russian government’s efforts to interfere in the 2016 presidential election — an investigation which encompasses “the nature of any links between individuals associated with the Trump campaign and the Russian government” and examines “whether there was any coordination between the campaign and Russia’s efforts.”  The investigation will “also include an assessment of whether any crimes were committed.”

Comey of course wouldn’t and couldn’t go into the details of an ongoing investigation.  But Ranking Member Adam Schiff filled in where Comey stopped short, outlining what has been claimed and in many cases confirmed in open sources to date.  

This includes an alleged offer to the Trump campaign of damaging documents regarding Hillary Clinton in exchange for an agreement to de-emphasize Russia’s involvement in Ukraine, a subsequent altering of the Republican party platform in a way favorable to Russia (namely the removal of a provision supporting the supply of lethal, defensive weapons to Ukraine), a prediction by a longtime Trump political advisor that John Podesta’s emails would be disclosed in advance of their ultimate publication, and lies by Mike Flynn, including to vice-President Mike Pence, regarding contacts with the Russians.  

As Rep. Schiff stated, it’s possible that all of these events and reports are no more than an “unhappy coincidence.”  But it is possible to that they are not coincidental. In Schiff’s words, “we simply don’t know, not yet, and we owe it to the country to find out.”

As Schiff suggested, a full, fair, independent and credible investigation is critically needed. This is essential to restoring Americans’ faith in our electoral process and to demonstrating to Russia the seriousness to which the United States takes this kind of unwarranted interference.  

But there is a real — and dangerous — risk that the investigation won’t be perceived as complete or credible.  At the same time that both Comey and his co-panelist, the National Security Agency Director Admiral Mike Rogers, were testifying, the President was tweeting his disapproval — suggesting alternative answers and expressing his disagreement with what they did say. One can only expect that the barrage of angry tweets will increase over time as the investigation progresses, particularly if the FBI uncovers information unfavorable to the Trump administration.

Meanwhile, not everyone has Jim Comey’s backbone of steel.  There is a palpable risk that those who handle this case at the same time they report to the president will either find it difficult to escape the influence of Mr. Trump, or, equally troubling, be perceived as being under the influence of their ultimate boss.   

This would be devastating.  It would mean that even if the investigation clears all those associated with the Trump campaign of any wrongdoing, it won’t bring the matter to a close.  It will simply lead to further speculation about a cover-up orchestrated a very vocal president.  The damage to our institutions, and to the public’s faith in the integrity of our democracy, will linger.  

Given these risks, it is essential that the Department of Justice appoint a special prosecutor of high stature who can conduct the investigation with independence.  We need someone who the American people — and the rest of the world — will trust to look at and accurately assess the facts. We need someone whose employment is not dependent on some of the very people that he or she is investigating.

This couldn’t be more important.  Americans need clarity as to what happened.   And they need to have faith that it won’t happen again.   A perception, even if not a reality, that campaign staff colluded with the Russians and got away scot free, is potentially devastating to our democracy.  

And Russians need to know that they can’t get away with these actions in the future.  Whatever the truth, they need to know that the United States can uncover it.  And take action as a result.    

Sadly, such meddling by the Russians is not new.  It builds on decade-old attempts by Russia to assert its influence throughout Europe, remold the world in its image, and to suppress democracies with which it disagrees.  But it is now brought to America’s doorstop.  Russia needs to know that it can’t get away with this kind of disruptive interference in our electoral process.  And the American people need to have faith that we can uncover the facts and take action against anyone who is implicated.  

To be sure, a Department of Justice investigation is only one prong of the needed response.  A bipartisan independent commission in the mold of the 9/11 Commission is also needed, as yesterday’s antics by House Chair of the Intelligence Committee Devin Nunes made all too clear. Such a bipartisan commission should have the explicit goal of providing a public accounting of what happened, whereas the results of the Department of Justice’s investigations may never be released publicly.  

Meanwhile, there needs to be faith in whatever the Department of Justice ultimately concludes.  The appointment of a special prosecutor is critical to ensuring that this is the case. Attorney General Jeff Sessions should appoint one. And Congress should insist on it.

Jennifer Daskal is an associate professor at American University Washington College of Law and was formerly counsel to the Assistant Attorney General for National Security at the Department of Justice.

The views of contributors are their own and not the views of The Hill.