Amateur sleuths in Congress failed on Russia probe and oversight

Save for the Senate Intel Committee, whose jury is still out, congressional oversight has failed on the Russia probe. That includes the Senate Judiciary Committee, which now joins the House committees as shameful.

This has been one of the most embarrassing oversight endeavors in memory. So much so that Republicans have brought its institutional investigative capabilities to the brink of disrepair. The president’s supposed overseers instead rationalize and deny his bullying away. The result is a battered check-and-balance function for Congress.

{mosads}This a story about how Congress has performed oversight versus how it should be performed, and what the consequences are. The House Intelligence Committee is the gold standard for epic fail, as I have written about in the past. Other House committees have rendered themselves irrelevant.

Senate Judiciary lost its moral authority when it went partisan. First came the suggestion that a fair and balanced investigation meant if President Trump is to be investigated, then by golly Hillary should be, too. A factual predicate be damned. Second came the Christopher Steele “criminal referral.”

Sessions not appointing second special counsel adds new complication in relationship with Trump https://t.co/CZRFdDbIRH pic.twitter.com/XSqUlOp8wd

— The Hill (@thehill) March 31, 2018

Worse, that committee and most Republicans in the House were calling for a second special counsel. They had Special Counsel envy: The Dems got Mueller to go after Trump, why can’t we have one? The problem is, Trump fired the FBI director. And given incriminating statements he made to Lester Holt and to Russians in the White House, there was good cause to investigate possible obstruction.

Do we have a similar fact pattern against Hillary? I haven’t seen one. If one does emerge, knock yourselves out, Republicans, and holler for your second special counsel. Until then, you have the power to investigate those matters yourselves.

The trouble with that scenario is that Republicans in Congress don’t know how to investigate. They have inadequate resources and, most importantly, no expertise. They view themselves as policy and legislation committees. Oversight is not even an afterthought. It’s outright alien to them.

The two Judiciary committees have oversight of DOJ and FBI. Why were they asking for a second special counsel? A special counsel looks for crimes. Congress has much broader authority that goes beyond mere crimes. They can find abuses, ethical lapses, and deeply ingrained bureaucratic cultural issues. Not even IGs ferret out cultural abnormalities, which can explain why abnormalities occur. That’s the hardest of all to investigate in government.

GOP senator: The special counsel in Russia probe was named “far too soon” https://t.co/DAETmpBy6H pic.twitter.com/eld70MSZ5X

— The Hill (@thehill) April 1, 2018

Look at the staff make-up of the two oversight committees. There are very few former prosecutors or investigators who will make their targets want to break out the knee braces.

When I was in the Senate, we called the House FBI oversight committee an FBI field office because they rubber-stamped whatever the Bureau wanted. Now, that same committee sees a Democrat behind every cubicle in the Deep State, including the FBI. It has transformed from an FBI field office to a White House field office. Meanwhile, the Senate Committee undermined itself when it made the Steele “criminal referral”.

I could probably make a better argument for a second special counsel to investigate the Steele referral than Republicans made for their probe into partisanship in the nation’s top law enforcer. Steele is an informant who provided law enforcement officers information about what he believed was a crime(s). He is therefore likely covered under 18 USC 1513, “Retaliating against a witness, victim, or an informant.” That carries a fine and/or 10 years. And it doesn’t say members of Congress or their staff are exempt.

“Nunes ‘memo’ drama proves it: Republican can’t govern, they only campaign” https://t.co/YipVeB0pa3 pic.twitter.com/D9Kmrjzp9x

— The Hill (@thehill) February 3, 2018

Having worked as a senior manager for a large IG shop, I can tell you that the Republican argument for another special counsel because the DOJ IG can’t subpoena witnesses who don’t work for DOJ is bogus. First, IGs rarely cannot get voluntary testimony. That has not been a burning issue. If an IG investigation turns potentially criminal, the IG can go to a U.S. Attorney or to Main Justice to find a prosecutor who will help develop the case. That would eventually include the power to compel by subpoena.

Attorney General Sessions, who rejected Republicans’ urging to appoint a second special counsel, says he has already assigned a prosecutor to the DOJ/FBI case for the Republicans. Usually, IGs have a burden to demonstrate to prosecutors that they have done their homework before DOJ will engage. So, in this case, it sounds like Sessions may have appointed a prosecutor anyway. If so, that would be putting the cart before the horse, in terms of normal practice. And it would show that Republicans may have politicized the law enforcement process and got their way anyway. Typically, we may not find out for a while how this case progressed.

Finally, Congress has self-inflicted a severe blow to its oversight integrity. Politics is driving the process. Their political antics are causing Sessions to labor mightily to stave off the politicization of the rule of law. His job hangs in the balance. Both institutions are being harmed dearly.

“FISA investigation needed to end American mistrust in government” https://t.co/93cdDj71Im pic.twitter.com/CCxSbFO8sI

— The Hill (@thehill) March 30, 2018

The committees’ bad precedents include letting witnesses dictate the terms of their testimony. Leaking and making “criminal referrals” are chilling the environment for future witnesses. New standards have effectively been set for witnesses claiming a privilege, even ones that don’t exist, and getting away with it.

The lasting effect of these unforced errors is institutionally crippling. Whenever I had a hard time getting a witness to appear, I had the threat of a subpoena in my back pocket. But first, I would go to the Senate Legal Counsel, who is the institutional keeper of the power secrets. If I wanted a line agent or a line attorney to appear before my committee, the counsel would give me a long list of past instances in which various Senate committees had compelled line agents and line attorneys to testify. If the general counsel of an agency would say their policy is to not allow such witnesses, I’d show them the list and they would reluctantly cave.

Now, thanks to amateur sleuths in the House and Senate, future agency counsels will have their own lists of bogus privileges and dictations for testimony. That is a severe blow to the integrity of congressional oversight.

As a life-long Republican, I regret how this behavior reflects on the party. As a career government oversight expert, I regret the damage being done to the institution of Congress and its ability to function as an effective check and balance for the executive. The majority leadership of both the House and Senate need to recognize the damage done and get a grip. They need to take active steps to repair the damage. To do that, they’ll first have to get a backbone.

Kris Kolesnik is a 34-year veteran of federal government oversight.  He spent 19 years as Senior Counselor and Director of Investigations for Sen. Charles Grassley. Kolesnik then became executive director of the National Whistleblower Center. Finally, he spent 10 years working with the Department of the Interior’s Office of Inspector General as the Associate Inspector General for External Affairs.