Focus on the US: The fraught question of how best to prosecute Russiagate

‘This is already beyond Watergate,’ the renowned historian Simon Schama tweeted of Donald Trump’s emerging Russia scandals. As a legal matter, that grave assessment will need to be tested by a duly-constituted authority. What form that will take is subject of keen debate.

The US Government has traditionally handled similar matters in one of three ways. First, the professionals at the Justice Department investigate it themselves. Second, the DOJ appoints a 'special counsel', as was the case with Watergate, either under general statutory authority or departmental regulations. Third, a panel of three judges picked by the Chief Justice appoints an ‘independent counsel’ under the Ethics in Government Act of 1978.

The post-Watergate Congress found what we now call ‘special counsel’ lacking, and designed an independent counsel law with just this moment in mind.  But the post-Monicagate Congress, for better or worse, let Ethics in Government lapse.

The threshold question is whether the DOJ can handle Russiagate itself. Attorney General Jeff Sessions recused himself after it came to light that he misled Congress as to his own dealings with Russia. Deputy AG-designate Rod Rosenstein told Congress that, without having immersed himself in the details, he saw no need to recuse himself at this time.

Two months into Donald Trump’s Presidency, Barack Obama’s White House counsel think the time for trust is long gone, and the time has come to protect democracy. David Sandler, who advised Obama on ethics, has called out the new White House for political interference. An instant disregard for ethics has earned our mistrust, he says: ‘[T]he Trump administration has shown that it's not willing to treat the DOJ as independent.’

Richard Painter, who advised George W Bush on ethics, has trust issues too. But even an impeccable DOJ, he thinks, would be categorically unfit to investigate here. ‘It’s an investigation of alleged ties between the Trump campaign and the Russians,’ he says, ‘and this involves almost conclusive proof of Russian espionage inside the US. The only open question is whether people in the Trump campaign collaborated with that or knew about that at the time it was taking place. And we cannot have political appointees of President Trump who are participating in that investigation and overseeing it.’

If the DOJ agrees, then the question becomes what form the investigation should take. History offers no easy lessons.

To investigate Watergate, Nixon’s DOJ appointed what we now call a special counsel. With the passage of time some find solace in Watergate’s outcome – but it was no institutional model. When Nixon tired of a special prosecutor, he ordered his Attorney General to fire him. What ensued was the ‘Saturday night massacre'. The AG and his deputy refused to follow Nixon’s order. The President fired each in turn, and the third in line did Nixon’s bidding. Fortunately, Nixon was susceptible to the moderating influences of a powerful centrist party and media establishment, and chose a responsible replacement counsel. But as the White House tapes document, Nixon shadowed the investigation through senior DOJ officials, and tried to obstruct it.

Congress responded by creating the independent counsel. As partisan warfare intensified, it became a singularly detested figure. By the time the Iran-Contra counsel had finished indicting Reagan’s inner circle, and Kenneth Starr had finished scrutinising Bill Clinton’s errant behaviour, both parties were ready for a change.

Desperate to move on, critics seized on Justice Antonin Scalia’s longstanding theory that the independent counsel violated the separation of powers because it did not answer to the political branches. The consensus in 1999 was that the Watergate reform had gone too far in the direction of independence, at the expense of political accountability. Congress let the law lapse.

Independent counsel yielded to special counsel as a creature of regulation. But the rules adopted by the DOJ require special counsel to consult the Attorney General on too many key decisions. So the department reverted to the Watergate model, appointing a special counsel under its general statutory authority. The FBI’s James Comey, as the Acting Attorney General who launched the Valerie Plame investigation, clarified that the special counsel enjoys plenary power, and is not restricted by the DOJ’s narrow regulations.

With the return of Watergate analogies, many in Washington worry that it’s still not independent enough. Deputy AG Rod Rosenstein is widely respected as a moderate career prosecutor. But the preservation of democracy should not depend on luck, and institutions must be designed accordingly.

Most Democrats say the only way forward at the moment is for Rosenstein to appoint a special counsel. But former independent counsel Carol Elder Bruce has argued that '[n]o internal Justice Department regulations or general statutory authority should take the place of an Act of Congress now when, as in the Watergate era, there are deep divisions in our society and yet a common public yearning for conflict-free investigations.'

In the long run, she believes, America needs a new Ethics in Government Act.