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Congressional Republicans Are Pulling a Bait-and-Switch in the Trump-Russia Investigation

Signs are mounting that the House Intelligence Committee plans on prematurely abdicating its work. 

U.S. Trey Gowdy (R-SC) (L) speaks during a hearing before the House Permanent Select Committee on Intelligence on Capitol Hill, May 23, in Washington, DC. ( Alex Wong/Getty Images)
U.S. Trey Gowdy (R-SC) (L) speaks during a hearing before the House Permanent Select Committee on Intelligence on Capitol Hill, May 23, in Washington, DC. ( Alex Wong/Getty Images)

On Dec. 15, Adam Schiff, the ranking member of the House Intelligence Committee, took to Twitter to express his concern that the Republican majority on the committee intended to “shut down the House Intelligence Committee investigation at the end of the month.” Schiff noted that the majority had not scheduled any additional witness interviews after Dec. 22. To date, he claimed, the Republicans have refused to issue necessary subpoenas and allowed witnesses to hide “behind nonexistent privileges.” He also alleged that the committee’s work on the investigation remained unfinished and that there were still “dozens of outstanding witnesses on key aspects of our investigation that they refuse to contact and many document requests they continue to sit on.”

Schiff’s fears about the investigation’s premature end have received some press support in recent days. Both the New York Times and NBC have reported that the committee majority is, in fact, looking to conclude the inquiry in the coming weeks.

The Republicans, for their part, deny Schiff’s suggestion that there was an effort to conduct “just enough interviews to give the impression of a serious investigation.” Instead, they claim they have spoken to everyone they need to and that the investigation has now run its course. As the Times reported:

“I feel no need to apologize for concluding an investigation,” said Representative Trey Gowdy of South Carolina, one of the Republicans leading the investigation.

Mr. Gowdy confirmed on Friday that he told a Democratic member of the committee, Representative Jackie Speier of California, that the end of the year offered a “natural boundary” to their work.

In an ideal world, congressional investigations are bipartisan undertakings, and the public can take assurance that an inquiry will conclude only when both sides agree they are prepared to issue reports, either independently or together. Even if they do not agree on the underlying facts, they agree on the underlying fact gathering. Suffice to say, we are not currently in an ideal world when it comes to the functioning of Congress.

That means it’s on the public to evaluate whether the House Intelligence Committee investigation has genuinely reached its appropriate conclusion. Is this simply a partisan “witch hunt” that Democrats are seeking to draw out to inflict maximum damage on the Trump administration, the mirror image of the contentious Benghazi investigation that Democrats insisted was a purely partisan endeavor? Or, conversely, are Republicans engaged in a cover-up, putting on a show of interviews and document review to appease the public while seeking to avoid damaging truths?

One way to answer these questions is to return to the beginning. What was the scope of the investigation in the first place? Do we have the answers that the endeavor set out to uncover?

The House Intelligence Committee first announced the scope of its investigation back in March, saying the inquiry would answer the following questions:

  • What Russian cyber activity and other active measures were directed against the United States and its allies?
  • Did the Russian active measures include links between Russia and individuals associated with political campaigns or any other U.S. Persons?
  • What was the U.S. Government’s response to these Russian active measures and what do we need to do to protect ourselves and our allies in the future?
  • What possible leaks of classified information took place related to the Intelligence Community Assessment of these matters?

The House Intelligence Committee further pledged:

[T]he Committee will seek access to and custody of all relevant information, including law enforcement and counterintelligence information, consistent with the Committee’s oversight jurisdiction and investigative responsibilities. The Committee’s inquiry will not, however, impede any ongoing investigation.

The Committee will also conduct interviews, take witness testimony, and review all reporting underlying the Intelligence Community Assessment (ICA) “Russian Activities and Intentions in Recent US Elections.” The inquiry will seek to ensure that the ICA comported with all relevant Intelligence Community analytic standards, and that allegations of Russian collusion with any U.S. Persons and the leaks of classified information are fully investigated. While the Committee has access to the reporting underlying the ICA, the Scope of Investigation reiterates the need to expand access to those documents and to ensure they are delivered to and stored at the Committee. It also sets forth the expectation that the Intelligence Community provide any other relevant intelligence to the Committee.

Following the January release of the intelligence community’s assessment of Russian interference in the U.S. election, there were widespread calls for a serious congressional inquiry in the form of a select committee or bipartisan commission. House and Senate Republican leadership staved off calls for those more aggressive steps by insisting the intelligence committees already had sufficient jurisdiction and resources to carry out a full investigation.

Without seeing the output of the investigation, i.e., the committee’s report, it’s impossible to know whether the committee has fully answered the questions it undertook to address. But at least as far as the House Intelligence Committee is concerned, there is reason for concern about a bait and switch. That is to say, there’s reason to worry that House Republicans endorsed the idea of a House Intelligence Committee investigation into Russian interference in order to prevent more serious — and less controllable — investigative bodies from being formed but then failed to undertake an investigation designed actually to ascertain the truth. With sufficient time now having passed to alleviate the acute political pressure that existed last December, they now seek to quietly wrap things up in a manner that will cause the White House and congressional colleagues up for re-election minimal headache in 2018.

What’s the evidence for that charge? First, there is the desire to end the investigation at this juncture in the first place. It’s possible that the House Intelligence Committee majority and minority reports will offer lots of new information that fully answers the questions posed in the original investigative scope. We will be pleasantly surprised if that’s the case, but we’re also not holding our breath. Consider the trajectory of other ongoing investigations into the matter. Despite the insistence of the Trump’s lawyers that special counsel Robert Mueller’s probe is set to exonerate him — in writing, no less — any day now, all available evidence is to the contrary. Mueller appears to be presiding over a complex and sprawling criminal and counterintelligence investigation that involves a great many individuals and a wide variety of matters. According to news reports, individuals working on Mueller’s team have indicated that they expect the probe to extend well into 2018, if not beyond.

The Senate Intelligence Committee investigation has not been without partisan controversy. Chairman Richard Burr even speculated back in September that the investigation could conclude by the end of the year. And yet, far from wrapping things up, that committee has now turned to investigating a new thread involving the campaign of Green Party candidate Jill Stein and at least one other unnamed candidate. And Burr himself recently said the investigation would stretch on into the new year.

In other words, the other investigations into Russian election interference seem to find new issues to look into each time they turn over another rock. It’s a little hard to believe that the House Intelligence Committee is so far ahead of everyone else that it is legitimately ready to wrap things up already. Is it winding down because it is not finding anything? Or is it not finding anything because it is winding down?

Rep. Schiff pointed to two particularly troubling signs that the investigation just isn’t that serious. First, there’s the failure of the committee to issue what he suggests are necessary subpoenas or to even ask for relevant documents. We don’t know how many subpoenas it would have been optimal for this investigation to have issued so far. Perhaps everyone has so fully cooperated that there has been little need for them. Color us skeptical. Indeed, recent court filings claim that despite the complex financial questions at issue, the House Intelligence Committee has issued only one subpoena to a financial institution, for records relating to Fusion GPS, the company behind the salacious but unverified “dossier” on Trump.

Second is the willingness of the committee to allow “witnesses [to hide] behind nonexistent privileges.” Witnesses before the congressional committees have been quick to assert vague claims of executive or attorney client privilege in declining to answer questions. Former Trump campaign advisor Carter Page offered frankly incomprehensible but presumably privilege-based grounds for not turning over requested documents to the committee. Attorney General Jeff Sessions appeared to rely on an executive privilege claim in declining to say whether Trump had asked him to drop any investigation. Sessions’s claim may well be valid, though he did not publicly articulate the precise rationale. And Donald Trump Jr. more questionably asserted attorney-client privilege in refusing to discuss conversations between himself and his father that took place with attorneys present. Some of these privilege claims would likely withstand scrutiny; others would probably not. The legitimacy of a privilege assertion is highly fact-dependent, and we simply don’t have all the facts to decide which are valid. What we do know is that the committee has not chosen to test these claims at all. Consequently, witnesses before the committee know that they can use privilege claims as a shield to avoid answering questions. That’s hardly the condition necessary for a productive inquiry aimed at ascertaining the truth.

There’s another piece of evidence that the committee is not done: A lot of witnesses have not been interviewed. Schiff has identified a bevy of witnesses he wants to talk to. According to the New York Times:

Mr. Schiff said he had a list of at least two dozen witnesses whom Republicans have been unwilling to call. According to a committee official, that list includes employees of Cambridge Analytica, officials at the Trump Organization and Michael Flynn Jr., the son of Mr. Trump’s former national security adviser who last month entered a plea agreement with Mr. Mueller.

We’re certainly not arguing that the committee is not done until Schiff is entirely satisfied, but these do seem like pretty substantial omissions given the committee’s investigative purview.

In short, it strains credulity to imagine that the investigation is really done at this stage. The majority has the power to shut down the investigation, to be sure, but those who believe that a full investigation remains in the national interest should treat any such shutdown more as an investigative pause than as the final word on the matter. If the House Intelligence Committee investigation fails to fulfil its mandate, the minority should make clear which elements of the committee’s work remain undone. The minority report should expressly state which questions remain unanswered, which witnesses still need to be interviewed or brought back for additional interviews, which documents were necessary but not requested, and which privilege assertions were left unchallenged. And the minority should make clear that all of these questions will spring back to life the moment control of the House of Representatives changes hands.

If the committee majority isn’t prepared to tell the American people what they need to know, the minority should issue a detailed report on the questions that were not asked — and still need to be.

Susan Hennessey is managing editor of Lawfare.

Benjamin Wittes is editor in chief of Lawfare.

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