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Strengthening Checks and Balances

The Legislative Value of the Mueller Report

(Photo of Special Counsel Robert Mueller: White House / Pete Souza; illustration: CJ Ostrosky/POGO)

Special Counsel Robert Mueller has wrapped up his investigation into Russian interference in the 2016 presidential election and obstruction of justice, and Attorney General William Barr has transmitted a letter to the Congress summarizing parts of Mueller’s findings on foreign interference into the election, and stating Barr’s own conclusion that there was no obstruction of justice. The Department of Justice has indicated that it will be sending Congress another summary of the report in the coming weeks.

Congress is uniquely positioned to consider legislative solutions to address any systemic problems that may have been uncovered by the investigation.

However, a summary is not adequate.

Unlike the Department of Justice, Congress is uniquely positioned to consider legislative solutions to address any systemic problems that may have been uncovered or highlighted by the investigation. Mueller’s report and the underlying documents are likely to provide valuable information about laws Congress has been considering changing or creating over the last few years, such as the Foreign Agents Registration Act (FARA) and the Secure Elections Act. Mueller’s report is also likely to touch on other issues of legislative importance, such as obstruction-of-justice laws and the Justice Department’s prosecutorial authorities.

Members of Congress on both sides of the aisle have indicated a desire to reform FARA, even introducing several pieces of legislation directly focused on improving and updating the law. Those bills included sweeping changes to the law aimed at making Justice Department enforcement easier. FARA is one of the only laws that regulate and provide transparency for the multi-billion-dollar foreign-influence industry. But a 2014 POGO investigation found that compliance with and enforcement of the law is staggeringly low and loopholes allow bad actors to slip through the cracks.

Other civil society organizations, Congress, and the Department of Justice Inspector General have also noted low compliance. Yet, prior to the Mueller investigation, the Department had only pursued criminal charges under FARA seven times in the last 50 years. It should not take involvement by a Special Counsel to discover and prosecute unregistered foreign agents.

Mueller's report may highlight that the Department's reliance on foreign agents to voluntarily comply with FARA means that it does not have a full account of everyone who seeks to influence U.S. policy on behalf of foreign interests. A 2016 Inspector General report found that, under the current law, the FARA enforcement unit does not have the investigative tools or authority it needs to find law breakers, and may not have the proper enforcement mechanisms to punish offenders. Mueller's report could provide clarity on how the law needs to be updated to reflect the current ways influence is being peddled and ensure the Department has the tools it needs to adequately enforce the law without involvement by a Special Counsel.

Further the Mueller report may provide deeply needed clarity on what activities and relationships with foreign powers and individuals should be registered under FARA. Several civil society organizations have noted that the broad, convoluted language of the law could easily allow foreign agents to slip through the cracks, and the courts have disagreed on what kinds of relationships trigger the registration requirement. Mueller's report may also provide clarification about how the Department determines FARA violations, and help focus Congressional attention on necessary legislative fixes.

Similarly, Members of Congress on both sides of the aisle have highlighted the need for improved election security in recent years. A bipartisan group of Senators worked diligently in the previous Congress to advance legislation that would improve the security and integrity of our elections in a variety of ways. This legislation—which has been reintroduced—would aid security to protect voting machines and registration databases from attack, and enhance auditing to ensure that the public can be assured of the legitimacy of election results.

The Mueller investigation highlights the need for this and other election security measures. One indictment in the Mueller investigation against Russian hackers concluded that the hackers intended to access voter registration data and succeeded in hacking into a vendor that had access to that data. Such a breach could impact election results just as surely as reprogramming voting machines could. It's critical that Congress receives the full details of these types of espionage activities so it can devise the most effective countermeasures to respond to and prevent future success of similar efforts to subvert our democratic process.

Additionally, Attorney General Barr's summary letter of the Mueller Report states that a main Russian effort to influence the election "involved the Russian government's efforts to conduct computer hacking operations designed to gather and disseminate information," mainly consisting of malicious hacking directed at campaign operations, officials, and associates. Before the 2018 midterm election, candidates and campaign entities were confronted with similar malicious hacking efforts. Greater knowledge about the scope and nature of these efforts will assist Congress as it considers measures to prevent future malicious hacking schemes, such as creating stronger protections against cyberattacks on Congressional offices.

While Barr’s letter to Congress summarizes the extraordinary investigative work that went into Mueller’s final report, that letter is not sufficient to meet the needs of Congress as it seeks to fulfill its constitutional duties. Congress’s role is different from that of the Attorney General or a Special Counsel: its primary function is to create the laws that govern and protect our nation. That requires thoughtful and robust oversight, and that, in turn, requires Congressional access to Mueller’s work.