As a military intelligence officer, Michael Flynn enjoyed a meteoric rise. He eventually earned three stars following brilliant assignments as the intelligence chief for Joint Special Operations Command and the U.S. command in Afghanistan. Unfortunately, Flynn crashed in his next assignment, being fired from his job leading the Defense Intelligence Agency. And in just 24 days on the job as President Donald Trump’s national security adviser, Flynn crashed even more spectacularly, leaving a smoking hole atop the National Security Council.
There is a risk that the smoke of Flynn’s crash will obscure the larger questions that remain regarding Russian influence on the 2016 election and the Trump administration’s uncomfortably cozy ties with Russian officials and oligarchs. The reporting regarding Flynn’s departure—not to mention the countless conflicts of interest in the White House—shows that the Trump White House cannot investigate itself, let alone answer these questions. The time has come to appoint a special counsel, to protect our national security and ensure the rule of law.
A brief survey of the Russia-related issues afflicting the Trump team shows how mired in this swamp (sorry!) the administration has become. During the campaign, the U.S. intelligence community reached the conclusion that its counterparts in Russian intelligence, as well as firms tied to the Russian government, had waged a broad “influence campaign” to “undermine public faith in the U.S. democratic process” and to help elect Trump. Several of Trump’s former campaign leaders maintained close ties to the Russian government, and reportedly are now under federal investigation for those ties. Flynn also kept such ties, including retainers that may run afoul of the Constitution’s Emoluments Clause due to his status as a retired military officer. Meanwhile, President Trump and his businesses retain deep financial ties to Russia—ties that bind the president himself because of his continuing refusal to divest his assets or eliminate his conflicts of interest.
Despite overwhelming and incontrovertible evidence supplied by career professionals in the Justice Department and the intelligence community—evidence that would have made either Ronald Reagan or Barack Obama sit up and take notice—Trump plans to do nothing. Actually, worse than nothing, as he continues to attack these reports as “fake news.” The president has attacked the intelligence community, the media, and the former deputy attorney general, Sally Yates, who Trump said “betrayed” her country in refusing to defend his immigration order—although it now seems likely Trump didn’t see eye-to-eye with Yates on other matters, given reports that she brought the Flynn-Russia matter to his attention.
With the Trump administration unwilling and unable to look into its own extensive foreign intrigues with Russia (and possibly other countries), the time has come for an independent prosecutor. Under the Constitution, the prosecutorial power is vested in the president, as a part of his executive powers to “take Care that the Laws be faithfully executed.” The president has broad discretion to enforce the law. This power, like all, must be used lawfully by the president; the other sections of the Constitution (such as the Fourth and Fifth Amendments) constrain the exercise of this awesome prosecutorial power. Nonetheless, the fundamental decision to bring a case remains the province of the president and his officers, including the attorney general and subordinate federal prosecutors across the country.
In response to the Watergate scandal, Congress created an “independent counsel” statute that would allow it, in certain circumstances, to request the appointment of a special prosecutor by the attorney general. However, Congress let the independent counsel statute expire in 1999, making it a casualty of the Clinton-era battles over Whitewater and the Lewinsky scandal. What remains today is a “special counsel” authority, held by the attorney general, to appoint prosecutors to handle particularly dicey cases (like the Trump-Russia mess). Under these rules, the attorney general may appoint a special counsel when an investigation “would present a conflict of interest for the Department or other extraordinary circumstances” and “it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”
The current Russia imbroglio meets each of these requirements. The Trump administration’s pervasive Russia ties create conflicts for nearly every political appointee in the White House, including the president and his closest advisers. The White House’s refusal to act on Flynn, even when briefed by Yates and the intelligence community about his potential for Russian blackmail, indicates the degree to which the Trump administration has been compromised by its own Russian ties. Trump’s continuing business relationships also create conflicts of interest that make it difficult for this president or his attorney general to supervise a full and complete inquiry.
Similarly, the appointment of a special prosecutor clearly serves the public interest. Russia’s cyberespionage campaign succeeded in undermining our national faith in electoral outcomes—an essential part of popular consent for governance. The continuing failure to hold any persons or institutions accountable for this illegal espionage campaign, and our failures to defend against it, undermine the rule of law and U.S. national security.
Under the constitutional separation of powers relating to law enforcement, only the president or attorney general may appoint a special counsel and define his or her scope of inquiry. Because of the very conflicts outlined above, neither President Trump nor Attorney General Jeff Sessions appear likely to commission a special counsel, let alone do so sua sponte.
While Congress does not have the unilateral power to appoint a special prosecutor, it is not completely powerless either. Congress may initiate oversight and investigations hearings, as a number of Republican and Democratic senators have suggested in recent days, to investigate the full dossier of Russia-related activity. Congress, particularly the Senate, can also use its powers over appropriations and appointees to hamstring the Trump administration until it acts to uphold the rule of law.
In 1973, Congress compelled the Nixon administration to appoint a special prosecutor to investigate Watergate by extracting a promise from Elliott Richardson that he would do so if confirmed to be attorney general. A bipartisan coalition of Democratic and Republican senators could take the same stand today, by conditioning the confirmation of a Trump appointee (or group of appointees) in the same way. Alternately, Congress could act by linking funding for a Trump priority (like the border wall or infrastructure) with appointment of a special counsel.
Even in the face of the current scandals, it’s hard to imagine Republicans in Congress taking action to force Trump or Sessions to appoint a special counsel. After all, these are the same GOP politicians who repeatedly rolled over and supported Trump during the campaign—once it became clear that his electoral fortunes were intertwined with theirs—and who have approved every cabinet appointee to date. But as more shoes drop, and more damage from Trump’s Russian relations becomes apparent, the calculus for Republicans in Congress may shift. Republicans (and Democrats) may soon see that the best 2018 or 2020 electoral strategy involves taking a harder line on Trump administration misconduct.
Our country cannot afford for Congress and the executive branch to sit idly by while foreign powers interfere with our elections, compromise our senior officials, and undermine our national security. The Trump administration’s actions to date indicate that it cares more about its image and self-preservation than our country. Congress must act to ensure neither the Trump administration, nor its Russian frenemies, are able to act with impunity.