Special Counsel Robert Mueller’s report on the Russian government’s efforts to interfere in the 2016 presidential election has been public for nearly three weeks. Since then, Members of Congress on both sides of the political aisle have debated the report’s findings, and there are many disturbing issues raised in it that Congress could continue to investigate and address legislatively.
Unlike the Justice Department, Congress is uniquely positioned to conduct oversight and craft legislative solutions to ensure that our democracy, laws, elections, and citizens are better protected. The report examines violations of current laws and exposes fissures in our democratic system that our Founding Fathers and other lawmakers from the past never anticipated. The constitutional separation of powers dictates that the executive branch enforces the laws, and now it is up to Congress to consider creating or amending laws to address vulnerabilities and weaknesses in election security, foreign lobbying, campaign finance, obstruction of justice, conflicts of interest, transition team transparency, personal electronic security, and the regulations governing special counsels.
Each of these issues is ripe for Congressional action. The special counsel wrote in his report that the “investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation,” citing individuals invoking the Fifth Amendment, claiming to be members of the media, asserting legal privileges, and simply lying. However, these issues might not present the same challenges for Congressional investigators. For example, Congress generally does not recognize common-law privileges, including the attorney-client privilege, which hindered the special counsel. Lawmakers and Congressional investigators may need to negotiate for information with the executive branch, but Congress would be within its constitutional authority to access privileged information that was not provided to the Justice Department.
The following are ten key issues found in the special counsel’s report that Congress could look into, and where applicable, could consider strengthening existing laws.
1. Reinforcing Election Security
While the special counsel’s mission was to investigate foreign interference in the 2016 election, the investigation uncovered no evidence supporting criminal charges of conspiracy between members of the Trump campaign or other American citizens and Russia. That said, the report discusses numerous instances of a foreign government and entities favoring and opposing candidates through social media accounts and advertising, as well as using malicious software to infect state and local election offices. Most disturbingly, voter rolls were vulnerable to tampering. According to the report, Russia’s military intelligence agency (the GRU) “gained access to a database containing information on millions of registered Illinois voters.”
The report also notes that the FBI believed the GRU used similar techniques in other cyber operations in 2016 “to gain access to the network of at least one Florida county government. The [Special Counsel’s] Office did not independently verify that belief and ... did not undertake the investigative steps that would have been necessary to do so.” Shortly after the release of the special counsel’s report, Senator Marco Rubio (R-FL) confirmed to The New York Times that the GRU had in fact accessed a Florida county’s voter registration rolls (the name of the county has not been made public), and that the hackers were “in a position” to alter the registration data.
Given the need for technical savvy and a process free of political gamesmanship, Congress could create an election security task force of independent experts to analyze the country’s voting and election processes to identify existing and potential vulnerabilities and develop recommendations to fix them.
In addition, while some individuals and entities have been held accountable for acts involving the 2016 election, such as creating fake social media accounts, Congress could incentivize social media providers to enact rules aimed at preventing such practices and increasing transparency around political advertisements. Congress could also examine whether agencies charged with regulating online communications, such as the Federal Communications Commission and the Federal Trade Commission, have the authorities necessary to guard against political advertisements by foreign entities on social media platforms.
2. Strengthening Foreign Lobbying Laws
Congress should strengthen the Foreign Agents Registration Act (FARA), one of the only laws that regulates and provides transparency into the multi-billion-dollar foreign-influence industry. Members of Congress on both sides of the aisle have indicated a desire to reform FARA, even introducing several pieces of legislation focused on improving and updating the law. Some of those bills included sweeping changes aimed at making Justice Department enforcement easier.
For decades, FARA compliance by lobbyists and enforcement by the Justice Department have been staggeringly weak, and loopholes allow bad actors to slip through the cracks. Some of this poor compliance is due to confusion about what activities and relationships trigger a FARA registration requirement. The special counsel’s report highlights the need to clarify the distinction between FARA and what is known as Section 951, a slightly different law making it illegal to knowingly act as an unregistered agent of a foreign government. The distinction between these two laws is hazy at best and the Justice Department’s Inspector General found there is considerable confusion within the Department about what constitutes a prosecutable FARA case as opposed to a Section 951 case. As Congress seeks to reform FARA and other foreign influence rules, it should clarify the applicability of each law.
3. Reviewing the Logan Act
The special counsel’s report summarizes numerous instances when the Trump campaign and transition teams, or others associated with them, held meetings with and were lobbied by foreign entities in ways that appear to be unlawful. This included discussions about official U.S. government acts to sanction Russia, a peace plan in Ukraine, opposing the United Nations vote on Israeli settlements, and not interfering in Libya, to name a few examples.
The Logan Act makes it a crime for Americans without the proper authority to negotiate on behalf of the United States with foreign governments under certain conditions and circumstances. However, the Logan Act is notoriously vague. The law reads in part:
Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.
Specifically, the law does not define key terms such as “disputes or controversies,” making it nearly impossible to prosecute anyone under it.
Congress could further investigate the episodes detailed in the special counsel’s report, and could look into whether the legal standards for prosecution under the Logan Act are too high to have any practical value, and whether it should amend the law.
4. Amending Campaign Finance Laws
The special counsel’s report reads like a how-to manual for well-connected individuals getting cozy with an incoming administration, which—even though we know that’s how Washington works—was jaw-dropping to see in print. It also points to the need for clarification in campaign finance laws, and the difficulties in assessing the monetary value of promised services or information damaging to an opponent’s campaign that exceed campaign finance thresholds.
Congress could investigate what types of services and things of value past political campaigns have received that should be considered improper contributions. Subsequently, Congress could amend campaign finance laws to better define the terms “contribution” and “anything of value” to include all types of research, information, and membership or mailing lists that might be supplied to a campaign.
5. Preserving Transition Team Records
The special counsel’s report notes several obstacles that made it impossible to obtain certain communications records. Some individuals who were interviewed or whose behavior was under investigation had at times used encrypted communication methods that limited the amount of time records were retained on a device.
While it may be impossible to require retention of all communications during a political campaign, doing so may be possible during the post-election transition period. Transition team accountability is essential to the peaceful transition of power that is a keystone of American democracy. Congress could consider whether existing laws related to records preservation should be extended to transition teams.
6. Ensuring Obstruction Applies to Everyone
“Well, if that’s not obstruction, I don’t know what is” has been a common refrain from some media personalities since the release of the report. The report describes ten instances when President Trump took actions related to the special counsel’s investigation that may have constituted obstruction of justice. However, in 2000, the Justice Department’s Office of Legal Counsel (OLC) issued a legal opinion that a sitting president cannot be indicted. According to the report, this opinion influenced the special counsel’s decision not to initiate criminal proceedings. While the OLC opinion is not the final word on whether a sitting president can be indicted, that should be up to the courts; Congress has a different, but complementary role. Congress should further investigate to determine whether the ten instances of possible obstruction of justice are impeachable offenses.
Congress should investigate the legal presumption laid out by the OLC opinion that the president is above the law, especially in obstruction cases that involve their administration. If Congress disagrees with the current Justice Department position, it should take action. For example, Congress could amend Chapter 73 of Title 18 of the U.S. Code to make absolutely clear that all U.S. persons are prohibited from influencing, interfering with, obstructing, or tampering with federal law enforcement proceedings and potential parties, jurors, witnesses, victims, and sources of information in any active federal investigation. These new rules would clear up any confusion about whether a president can obstruct justice, and would also apply to Members of Congress who have access to investigative materials and information and who pass it along to potential subjects, jurors, witnesses, victims, and sources of information in any active federal investigation.
Congress should also investigate whether any subject of the special counsel’s investigation was offered a reprieve or a pardon by any government official or personal counsel for President Trump. While the Constitution provides the president the power to pardon individuals for offenses against the government, having such discussions during a federal investigation and subsequent judicial proceedings may go beyond what is constitutionally protected. Congress should determine whether it has the authority to prohibit a president’s corrupt use of the pardon authority in order to protect the integrity of the administration of justice.
7. Prohibiting Personal Financial Conflicts of Interest
The special counsel’s report discusses President Trump’s longtime personal attorney Michael Cohen’s testimony in which he “recalled conversations with Trump in which the candidate suggested that his campaign would be a significant ‘infomercial’ for Trump-branded properties.” President Trump’s business enterprises have raised ethics concerns ever since he because a candidate for president in the 2016 elections. Government time and resources are being wasted defending the President’s right to own, or license his name to, resorts, golf courses, and hotels that are profiting from U.S. taxpayer and foreign government monies.
Congress should consider amending the Ethics in Government Act and other laws preventing personal financial conflicts so that they apply to the president and vice president. Doing so would help confront similar ethics concerns in the future, and the public deserves adequate assurances that all government officials are acting in the country’s best interest, and not for personal or private gain.
8. Improving Personal Electronic Security
The report brings to light instances of hacking and the dumping of stolen electronic data, including instances when foreign entities and a campaign official used leaked passwords to access private accounts. Congress must look at how it can support effective digital security to prevent this type of malicious hacking and exploitation of private communications of individuals connected to political campaigns.
9. Codifying and Strengthening the Special Counsel Regulations
Independent criminal investigations, including those involving very senior government officials, must be conducted outside the political arena. The regulations authorizing and governing special counsel investigations should be codified and strengthened. Any future appointments of special counsels should insulate the investigations from any hint of political interference, require unfettered independence, provide all tools necessary to conduct thorough investigations, and prohibit the premature or otherwise improper termination of such investigations.
10. Holding Individuals Accountable for False Statements
Congressional committees that have taken sworn statements from witnesses should review the special counsel’s report for testimony or statements that conflict with testimony provided to Congress. Congress must exercise its constitutional authority as a coequal branch of government and hold witnesses accountable if they lied to committees. Additionally, the committees should ascertain whether any previous misleading witness testimony undermined their investigations and findings. Congress made a criminal referral last week involving apparent false statements by Erik Prince, former CEO of the defunct private security firm Blackwater and brother of Secretary of Education Betsy DeVos. Lawmakers might find that additional referrals are warranted.
Congress has an essential constitutional role here: it must conduct nonpartisan oversight and, as necessary, provide legislative solutions to the findings in the special counsel’s report. That role isn’t to name and shame or play party politics; nor should members of either party bury their heads in the sand. Congress must do the hard work of further exposing and resolving the many issues raised in the report to protect our elections, our privacy, our rule of law, and our nation.