Page Pate: Congress botching probe of possible Trump team ties to Russia in election
Pate: Questions raised about Nunes' integrity; Trump has too much power over process
Editor’s Note: Page Pate is a criminal defense and constitutional lawyer based in Atlanta. He is an adjunct professor of law at the University of Georgia, a founding member of the Georgia Innocence Project, a former board member of the Federal Defender Program in Atlanta, and the former chairman of the criminal law section of the Atlanta Bar Association. Follow him on Twitter @pagepate. The opinions expressed in this commentary are his.
It’s clear that Russia tried to influence the presidential election last year. What’s not clear is whether President Donald Trump or anyone associated with his campaign or transition team were involved. I don’t think we will ever know the truth unless a special prosecutor takes over the investigation.
Congress is making a mess of the investigation. Senior members of the House Intelligence Committee are at odds after the Republican chairman, Devin Nunes, announced he had found evidence that members of the Trump transition team, and perhaps Trump himself, were caught up in an intelligence investigation during the Obama administration.
Nunes hasn’t publicly said what information he has seen, or how he got it. But he quickly ran to the White House to advise Trump of his concerns without consulting other senior members of his committee. This raises serious doubts about his integrity and credibility. He can’t run a meaningful investigation if he is off briefing the person being investigated.
We can’t rely on the Justice Department to save the day. It’s run by Jeff Sessions, a Trump ally and campaign associate. Although Sessions has agreed to step aside, that doesn’t solve the problem. In Sessions’ absence, the deputy attorney general would decide if criminal charges are appropriate. But the deputy attorney general can be removed and replaced by Trump at any time if Trump decides he doesn’t like the direction of the investigation. I don’t see how people who work for Trump can credibly investigate whether Trump committed a crime.
FBI Director James Comey on Monday disclosed an ongoing investigation into the Trump campaign’s potential collusion with Russia. His job is far from secure. Not only did he publicly disclose this criminal investigation (a bombshell itself), but he also basically called Trump a liar – not just once, but twice.
First, he denied the existence of any evidence to support Trump’s claims of being wiretapped by President Barack Obama. Then, in an incredible real-time rebuttal of a Trump tweet, Comey refuted a claim made by the White House that the FBI and National Security Agency had confirmed to Congress “that Russia did not influence electoral process.”
And Comey has his own problems that may make it politically easier to remove him. His popularity is the lowest of any FBI director in history according to one recent poll, and he is facing an internal Justice Department investigation into whether he violated policy by disclosing the investigation into Hillary Clinton’s emails when he did.
It’s easy to imagine Trump asserting that he has lost confidence in Comey and that the investigation that apparently started in July has gone on long enough with no measurable results. Trump could then replace Comey with someone who would terminate the investigation.
Because Trump has the ability to terminate this investigation by firing the investigator, the only way to get to the truth is to appoint an independent special prosecutor. Ideally, this person would be appointed by a panel of federal judges and subject to removal only for good cause.
But the law that authorized this type of independent counsel expired long ago, so any special prosecutor would have to be chosen by someone in the Justice Department. That’s not a perfect solution, but it’s the best one available.
A special prosecutor, if competent and credible, would be able to dig through the available evidence and, ultimately, make an informed and nonpartisan decision about bringing criminal charges. A special prosecutor is exactly what our country needs. And we need one now.