With Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsPress: For Trump endorsement: The more sordid, the better Those predicting Facebook's demise are blowing smoke If bitcoin is 'digital gold,' it should be taxed like gold MORE recusing himself from the Russia-Trump investigation, it is likely that the investigation will be conducted by Sessions’ associates at the Justice Department. Even if those conducting the investigation are entirely objective, many Americans will not trust an investigation conducted by individuals whose careers will depend on approval by their recused boss, Jeff Sessions. Nor will the public necessarily trust a special prosecutor appointed by the Republican controlled Justice Department.
Neither will the public have confidence in investigations conducted by Republican dominated congressional committees. The minority party lacks the power to issue subpoenas or call witnesses, so any investigation is likely to be skewed in the direction of Republican interests.
The ideal investigatory body would be a bipartisan commission as the kind appointed following 911, but it is unlikely that any such commission will be appointed, despite the fact that all Americans – Democrats and Republicans alike – are affected by Russian intrusion into our elections.
I have come up with an alternative that, while not perfect, assures that there would be bipartisan input into an investigation of the Russian-Trump connection. Under this alternative, investigations could be conducted by state attorney’s general, in states that voted for Trump, but that have Democratic attorneys general.
One such state is Pennsylvania, where polls had Clinton in the lead, but Trump eventually won by seven-tenths of one percent. The attorney general of Pennsylvania is a brilliant and accomplished lawyer and a Democrat who recently won election despite the Trump victory. He has the power to conduct investigations, subpoena witnesses and documents, and even indict if criminal conduct is established. Nor would any such investigation by a state attorney general intrude on the legitimate authority of the federal government.
Recall that our presidential elections are really 50 state elections for electors. If Russia improperly interfered with the presidential election in an effort to make Trump the president, it is reasonable to assume that their interference may well have had an impact on the Pennsylvania presidential election for its 20 electors. Surely the attorney general of the state should have the power to investigate whether any such interference with its voters may have occurred.
In a McCarthy era case, the United States Supreme Court ruled that federal law pre-empted states from prosecuting individuals for treason-like offenses, such as sedition. That decision and others that followed it, would not, in my view, preclude states from conducting investigations regarding the impact of any Russian interference on the election of their electors.
An investigation conducted by the attorney general of Pennsylvania, or by the attorneys general of the hand full of other states that voted for Trump but have Democratic attorney generals, would not be easy to conduct. Out of state subpoenas would have to be issued. Out of state witnesses—even some in foreign countries –would have to be questioned. Privileges would be claimed by government officials, both domestic and foreign. Some of these barriers would also stand in the way of any Justice Department or Congressional investigation but the barriers would be somewhat more difficult – though not necessarily impossible –to overcome by a state attorney general.
On the positive side, a well -conducted state investigation would serve as a check and balance on investigations conducted by Republican controlled investigatory agencies. An investigation by Democratic attorneys general would help assure that the other investigations did not become partisan whitewashers.
State attorneys general are becoming increasingly important in serving as checks and balances against the Republican controlled executive and legislative branches of our national government. The lawsuit brought by the attorneys general of Washington and Minnesota forced the president to change and reissue his executive order regarding immigration. State attorneys general should begin to flex their legal muscles in a quest of bipartisan justice.
An investigation into the Russia-Trump affair by state attorneys general would be a worthy sequel to the lawsuits brought against the Trump immigration order by the attorneys general in Washington and Minnesota.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of “Taking the Stand: My Life in the Law” and “Electile Dysfunction: A Guide for the Unaroused Voter.”
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