An important window of opportunity has been opened for Congress by the firing of James B. Comey as director of the FBI.
But the Republicans in charge on the Hill have only two narrow ways to move through it successfully. And the pressure is on for them to choose one quickly and then act fearlessly — or else they’ll likely squander a hard-to-come-by moment for gaining important credibility with the public as well as some lasting balance-of-power leverage in dealing with President Donald Trump.
The opportunity is for the legislative branch to seize control of a task that seemingly can no longer be entrusted to anyone in the executive branch’s chain of command: Getting to the bottom of Russia’s efforts to tilt the presidential election in Trump’s favor and discovering if there was any collaboration during the campaign between the government at the Kremlin and the team occupying Trump Tower.
One option is for the GOP to empower the Democrats as essentially equal partners as Congress tackles the work itself — probably by giving all the authority to the Senate Intelligence Committee, which currently stands out as the panel doing the only bipartisan and potentially serious work on the Trump-Russia nexus.
The alternative is for the congressional majority to agree with what the Democratic minority wants and assign an independent commission or investigator to the job, albeit with an explicit promise to embrace the findings and recommendations of such a panel or prosecutor.
Expecting one of those outcomes is not naive, but a critical mass of Republicans would have to conclude it’s clearly in their political self-interest to put a premium on standing up for the rule of law and standing up to the president.
It’s also important to remember how Trump himself has importuned Congress several times to get to the bottom of one of the most dramatic Russia story lines — Trump’s emphatic but wholly unsubstantiated claims that his predecessor Barack Obama overstepped his presidential authority and ordered the wiretapping of Trump’s telephones during the campaign.
Because the president has asked for it, he cannot credibly claim to be a victim of any earnest effort by lawmakers to follow the facts where they lead.
Burr in the saddle
Promising to tackle the work by themselves, without fear or favor, presents the lawmakers with much greater risk but also the potential for a much greater reward.
By coincidence or fate, the GOP chairman of Senate Intelligence, Richard M. Burr, holds the same North Carolina seat once occupied by Democrat Sam J. Ervin Jr., legendary Democratic chairman of the special Senate committee that investigated the scandal leading to President Richard Nixon’s resignation.
Comey’s stunning dismissal Tuesday evening engendered a wave of comparisons to the so-called Saturday Night Massacre of 1973, when Nixon sought to fire Watergate special prosecutor Archibald Cox and ousted the two most senior Justice Department officials who refused to follow the president’s orders.
It’s no sure thing that parallels between the Watergate scandal and Moscow’s meddling in the latest election will hold up in full light of history, but this much seems certain:
The inquiry Ervin led with his courtly manner and frequent invocations of the Bible — captured in a summer of televised hearings that riveted the nation — remain a high-water mark for the sort of sober, thorough and bipartisan work that can simultaneously defuse a potential constitutional crisis and revive sagging congressional approval ratings.
If Burr is able to replicate most of what his predecessor achieved, that would help restore respectability to a congressional oversight process widely derided as so much dispiriting political gamesmanship, and at the same time elevate GOP lawmakers so they might credibly look the president in the eye and declare themselves his equal on all fronts.
Of course, the opposite is at least as true.
If Republicans insist on their current commitment to keeping the Russia inquiry in-house, but then allow it to disappear down the easily predicable sinkhole of partisan finger-pointing and diametrically opposite narratives, the resulting impasse will further calcify the electorate’s view of Congress as a place with a minimal seriousness of purpose deserving of its minimal public regard.
And a president already sharply inclined to highly unusual assertions of executive authority will feel all the more emboldened to continue those practices — without worry that Congress will so much as bare some teeth to stand in his way.
A strong signal?
If Comey accepts an invitation to testify next week before Senate Intelligence, what he’s asked and the tone of the questioning will send a strong signal about whether Burr and the panel’s top Democrat, Mark Warner of Virginia, have a chance to live up to the example of consequential bipartisanship set four decades ago by Ervin and his ranking GOP member, Howard H. Baker Jr. of Tennessee.
“We are finally making some significant progress” toward a report that will recommend “whether or not an inquiry from a law enforcement perspective is warranted,” one prominent committee Republican, Marco Rubio of Florida, told reporters Wednesday.
He warned that acting on legislation creating a special prosecutor, the course favored by many Democrats, “would probably shut down our ability to do our work because a significant amount of information would now be denied on the basis of an ongoing investigation.”
If Congress cannot decide to rely exclusively on its own investigative muscle, or exclusively on independent outsiders, a third alternative is to pursue both courses simultaneously — which is what happened during Watergate, with complications that were confusing but did not ruin the pursuit of Nixon’s abuses of power.
A final option is for lawmakers to essentially stand aside if the Justice Department names a credible special counsel empowered to autonomously investigate the ties between Russia and Trump.
But the Democrats have essentially dismissed this idea as a non-starter, because the appointee’s independent work would inevitably fall under the review of Deputy Attorney General Rod Rosenstein, who wrote the memo setting out the rationale for Comey’s firing, and then Attorney General Jeff Sessions, who has promised to recuse himself from any aspect of the inquiry because of his not-readily disclosed contacts with Russian officials while he was an Alabama senator playing a senior advisory role in the Trump campaign.
The House folds
In any case, the fate of congressional credibility during the climatic chapters of the Russian election meddling story looks, for the time being, to rest with a clutch of the Senate’s most independent Republicans. That’s in part because the House GOP leadership seems inclined to remain as collectively frozen in silence as it’s been since the Comey dismissal, and in part because the Democrats need buy-in from only a handful of Republicans to advance their preferred approach through the Senate.
Congressional Democrats are sounding united in their outrage at the FBI chief’s ouster, which seems to have made them more committed than ever to focusing the nation’s attention on the possibility that Trump is seeking to cover up collusion with Moscow in the campaign.
That stands in stark contrast to what the White House seemed to be counting on: that the Democrats would accept the dismissal as apt punishment for someone whose unusual series of public statements about Hillary Clinton’s private email server contributed to her defeat last year.
As of Tuesday afternoon, seven of the 52 GOP senators, including Burr and three others with prominent committee gavels, had gone public with statements questioning Trump’s motives and timing in dismissing the person in charge of a criminal investigation in which the president has such an obvious vested interest: Foreign Relations Chairman Bob Corker of Tennessee, Energy and Natural Resources Chairwoman Lisa Murkowski of Alaska, Armed Services Chairman John McCain, his Arizona colleague Jeff Flake, Rob Portman of Ohio and Ben Sasse of Nebraska. (Only Corker and Flake are up for re-election in 2018.)
This group would have the leverage to decide that Russia’s ties to Trump are better probed by an independent commission or prosecutor — and whether anyone Trump might nominate should be allowed to become the eighth director of the FBI, unless confirmation is coupled with some path forward on the Russia investigation.
For these Republicans, and maybe a few others, the time is short for deciding what’s in their best interest — and whether moving to get on the right side of history means leaning into a potentially enormous showdown with Trump or subcontracting the conflict to others.