The congressional investigation into Russia’s influence on the 2016 presidential election should not end or slow down because the Department of Justice has appointed a special counsel to conduct a parallel criminal investigation.
Congress’ responsibility to investigate is very different from the duty of the Justice Department or a special counsel to investigate. Congress does not — nor is it allowed to under the Constitution — investigate to determine whether or not a crime was committed. That is the sole purpose of an investigation by a Justice Department prosecutor. Instead, Congress’s authority to investigate is broader.
It has a duty to inform the public of the facts underlying matters of importance — to tell the public what happened, not with respect to whether a criminal law has been violated, but whether a law is needed to deter or punish misconduct in the future or to address important public policy matters. These obligations are particularly important in matters of national security and the sanctity of our electoral system. The Department of Justice and its special counsel have no such duty or authority.
Concern has been expressed as to whether an ongoing congressional investigation could interfere with the criminal investigation. It need not. Successful congressional investigations have often been conducted concurrently with successful criminal investigations. While having both investigations moving simultaneously adds procedural complexity with both often needing access to the same documents and witnesses, that need not prevent either the Justice Department or Congress from fulfilling their missions.
While in the Senate, I led several bipartisan congressional investigations into matters that were simultaneously the subject of criminal investigations, including Wedtech, Enron, and misconduct by foreign and U.S. banks. In each case, we were able to work out any potential conflicts. During our investigation of Enron, for example, the treasurer of Enron offered to testify before our subcommittee if we granted him immunity.
My staff immediately contacted the head of the Criminal Division at the Department of Justice to inquire whether our granting immunity would have a negative impact on the criminal case. We were advised that his testimony was key to several prosecutions. So we took a pass on getting the treasurer’s testimony at our hearing, and we were able to work around his absence. Well-established rules, practice, and common sense can resolve the dual use of testimony, documents, and immunity.
In addition, in cases involving critically important matters of public policy — including this Russian investigation case which involves national security, foreign affairs and a federal election — the congressional investigation can be more important in the long run than deciding who, if anyone, broke the law. In the case of Watergate, it was the congressional hearings and not the prosecution of the burglars, that uncovered the important truths. In the Iran-Contra affair, it was the congressional probe, and not the criminal investigation, that found President Reagan had not disclosed key facts to the American people.
The bipartisan report issued as a result of that congressional investigation explicitly found that the president “told the public that the United States had not condoned the arms sales by Israel to Iran, when in fact he had approved them and signed a Finding, later destroyed by Poindexter, recording his approval.” It went on to note, “The idea of monarchy was rejected here 200 years ago and since then, the law, not any official or ideology — has been paramount. For not instilling this precept in his staff, for failing to take care that the law reigned supreme, the president bears the responsibility.” That congressional determination was not a criminal finding, but it was one essential to reaffirming our democratic system of government.
And, when our bipartisan investigations exposed money laundering, tax evasion, or reckless investments of federally insured deposits at banks like HSBC, UBS, or JPMorgan, those disclosures had a larger policy impact than the criminal proceedings that followed, resulting in new bank regulations, new agency procedures, and congressional approval of remedial legislation.
That is not to say that criminal prosecutions are not important. They are. Only corrupt societies tolerate impunity. And the newly-appointed special counsel should proceed with thoroughness to complete the criminal investigation wherever the facts take him. But Congress also has an essential role to play in investigating and disclosing the facts, and it must carry out its Constitutional obligation by moving forward with a bipartisan, fact-based investigation.
As former Sen. Ralph Brewster, a Republican from Maine, said when serving on the Truman Committee that investigated wartime profiteering, “Reasonable men don’t differ much when they have the facts.” And the facts — all the facts, not just the facts involving possible criminal activity — are what we need.
Carl LevinCarl Milton LevinOvernight Defense: First group of Afghan evacuees arrives in Virginia | Biden signs Capitol security funding bill, reimbursing Guard | Pentagon raises health protection level weeks after lowering it Biden pays tribute to late Sen. Levin: 'Embodied the best of who we are' Former Colorado Gov. Richard Lamm dead at 85 MORE served as U.S. Senator from Michigan from 1979 to 2015. He currently serves as chairman of the Levin Center at Wayne State University Law School that trains legislative staff in factual bipartisan oversight.
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