Holding the Government Accountable

Investigation Pro-Tips from the Church Committee’s Chief Counsel

Special Senate Committee on Intelligence Operations, also known as the Church Committee, 1975, Frank Church Papers, photo permission given by Boise State University Library, Special Collections and Archives

Two weeks ago, President Trump fired FBI director James Comey—the man leading the investigation into Russia’s possible interference with the 2016 election and potential collusion between Russia and Trump campaign associates. The most recent major development since then is the appointment of former FBI director Robert Mueller as special counsel to oversee the probe due to concerns about the independence of the investigation.

Public opinion on this whirlwind of news is divided deeply along partisan lines. Given the gravity of the subject, is a special counsel enough?

Many, including the Project On Government Oversight, are calling on Congress to step up its oversight so the public can have credible answers to the questions being posed. Mueller's probe will be focused on determining whether there were criminal actions, but there are other significant and systemic issues the legislative branch should investigate, too. But just calling for more oversight doesn’t help if that oversight isn’t done well—and in this chaotic landscape, it could be hard for leaders on the Hill to know where to start.

Photo of Fritz Schwarz accepting the 2014 Ridenhour Courage Prize.
Fritz Schwarz accepts the 2014 Ridenhour Courage Prize. Photo by Pam Rutter/POGO.

Luckily, Fritz Schwarz, Jr., does know where to start. Schwarz was the chief counsel to the Church Committee—a Senate select committee that investigated intelligence community oversight in the wake of the Watergate scandal and is generally regarded as one of the most successful Congressional investigations.

In a wide-ranging conversation, we asked Schwarz what made the Church Committee work and what challenges current Congressional investigations face. Here are some highlights, lightly edited for length and clarity.

Setting the Church Committee for success

“The committee was nonpartisan and that made a huge difference. It helped that probably our most important finding was that every single president starting with Franklin Roosevelt and running through Richard Nixon—six presidents, four of whom were Democrats—every single one of those six had abused their secret powers. I think that helped with both our internal cohesion then our external impact.”

“The committee was structured primarily by Mike Mansfield, who was then the majority leader of the Senate. He made choices at the beginning, probably in consultation with other important senators including the minority leader,that helped.

“First, the committee was a select committee and that was important. A select committee is a committee that’s chosen just for a particular job and is not one of the existing committees […] That was an important structural choice that helped with the nature of the committee because it was filled with people who had not previously been involved with inadequate oversight.

“Secondly, Mansfield set up the committee with a balanced ratio of Democrats and Republicans. At that time the normal ratio for an eleven-person committee would have been seven Democrats and four Republicans, but Mansfield set it up with six Democrats and five Republicans.

“And the final thing from a structural point of view Mansfield did that was important for our later success was that he made the leader of the five Republicans not the so-called ‘ranking member,’ which is what’s normal for a committee and which is a ceremonial rather than a substantive job, but instead made him [Senator John Tower] vice-chairman. That meant when [Senator Frank] Church was not around, Tower would preside.”

Getting focused—and getting prepared

“Another reason for our success is that we were highly focused. One of the I think useful points I made at the beginning when we were getting organized is that we couldn’t possibly cover everything that might be of concern, so we therefore had to pick key issues.

“We did that and while some new stuff came in that we hadn’t picked originally—like we didn’t originally as I recall know anything about NSA and may not have even had NSA on our list, but if we did, we didn’t have a focused reason to be looking at it. So in other words, even though we made a list of things to cover, that didn’t mean new things couldn’t come along.

“The third thing I would say is vital to Congressional investigations is that is you have to prepare, prepare, prepare. You can’t rush into taking testimony without having first gotten the key documents—and to get the key documents you have to be persistent because the executive branch which controls the documents is going to have a natural tendency to try not to give up too much information.

“You have to be persistent and determined—and you have to publicize failures by the executive branch to deliver documents or provide witnesses.

“But the documents have to be the first thing. You have to write tough, clear, and comprehensive document requests and when you don’t get the documents you need to continue to push them. In this case, we had Senator Church who dominated at the Committee in the early parts when it came to making press statements about the government being too slow.”

Why the investigation before Congress today is different

“The difficulty today is that it makes it harder to be non-partisan when the potential investigation is of one person—in other words, just being Trump—makes it harder.

“It’s intrinsically more difficult when that’s what you’re doing. But if a particular president goes far enough to violating norms, then you can imagine today’s greater partisanship being overcome. When you get to Nixon’s impeachment, in the House a number of Republicans joined in the vote to impeach him.

“Is today inherently a little bit more partisan? I think it is. In general, I think the Senators back then really did collaborate and also each party was a little more politically diverse back then. Democrats had a lot of conservative members—particularly from the south—and the Republicans had more liberal members.

“For many reasons our parties are now more unified and that makes them more partisan—so it does make it harder to have a good investigation. It doesn't make it impossible. It becomes a matter of honor to do a good job, and not just a matter of ideologies to decide what the job should be.”

Looking forward

“I do think partisanship is more of a problem now, but I don’t think it would prevent people from Congress from—if things continue to get worse—having a legitimate investigation.

“I don’t think checks and balances have disappeared as an ideal for America—and I think the judicial branch and the legislative branch aren’t willing to give them up.

“The courts have not been afraid to disagree with the President in the last few months. And in Congress, while you can see the partisan fissures in how they’re addressing it, certain people like Senators Burr and Warner from the Senate Intelligence Committee certainly indicate that they believe Congress has important oversight rights.

“While the current president is acting inconsistently with norms often, I don’t think those norms have been discarded as worthless.”