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A Special Counsel Shouldn’t Keep Congress from Investigating

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The appointment of a Special Counsel should not keep Congress from investigating Russian influence on the 2016 presidential election, according to former Senator Carl Levin (D-MI). Levin would know, given that he served as the Chairman of the Senate’s Permanent Subcommittee on Investigations for over ten years, a subcommittee known for successful investigations. (Full disclosure: POGO partners with the Levin Center at Wayne State University Law School to train Congressional staff in conducting bipartisan and effective investigations.)

In an opinion piece this week in The Hill, Levin lays out numerous examples from history and his time in Congress showing that criminal investigations conducted by the Department of Justice (DOJ) can co-exist with Congressional oversight:

During our investigation of Enron, for example, the treasurer of Enron offered to testify before our subcommittee if we granted him immunity.

My staff immediately contacted the head of the Criminal Division at the Department of Justice to inquire whether our granting immunity would have a negative impact on the criminal case. We were advised that his testimony was key to several prosecutions. So we took a pass on getting the treasurer’s testimony at our hearing, and we were able to work around his absence. Well-established rules, practice, and common sense can resolve the dual use of testimony, documents, and immunity.

While they require additional care and communication with prosecutors, Congressional investigations can bring to light major findings that would have been left unaddressed by a DOJ criminal investigation.

Congressional oversight also serves a broader role than a law enforcement investigation, which seeks primarily to determine the narrow question of whether laws were broken and whether a case meets the standard for prosecution. During the Watergate and Iran-Contra scandals, for example, it was Congress that took the lead in uncovering presidential abuse of power and disregard for the rule of law. These Congressional investigations also led to the passage of new laws designed to prevent future wrongdoing. Levin elaborates:

[Congress] has a duty to inform the public of the facts underlying matters of importance — to tell the public what happened, not with respect to whether a criminal law has been violated, but whether a law is needed to deter or punish misconduct in the future or to address important public policy matters. These obligations are particularly important in matters of national security and the sanctity of our electoral system. The Department of Justice and its special counsel have no such duty or authority.

Read the full article in The Hill