Why a thorough investigation of Russian election meddling is still possible

Practically speaking, at issue right now are two very different approaches to a new a Russia investigation effort.

This story was updated on May 11.

President Trump’s sudden dismissal of FBI Director James Comey has caused many Democrats (and some Republicans) to redouble calls for some sort of new and more independent investigation of Russia’s interference in the 2016 presidential election.

But the reality is that at this point a new Russia probe is unlikely. At the Justice Department, the person who would appoint a special counsel for Russia is Deputy Attorney General Rod Rosenstein – the same Rod Rosenstein who wrote a three-page memo the White House is using to justify Comey’s firing. In Congress, Senate Majority Leader Mitch McConnell of Kentucky says he won’t support creation of any special investigatory panel. Neither will Speaker of the House Paul Ryan. So that pretty much shuts the door.

Still, it remains possible that the nation will get credible and even bipartisan looks at what Russia did and what ties, if any, it had with Trump campaign officials. The FBI’s investigation has been grinding along for months. Federal prosecutors are now reportedly issuing grand-jury subpoenas for associates of former National Security Advisor Michael Flynn. And the Senate Intelligence Committee appears to be approaching its probe in a methodical way.

“The Senate [Intelligence Committee] seems to be doing things thoroughly. It may take a long time but we could get a pretty deep investigation,” says William Banks, a law professor and founding director of the Institute for National Security and Counterterrorism at Syracuse University.

Practically speaking, at issue under current law are two very different approaches to a new Russia investigation effort.

The first would be a special prosecutor or special counsel – an official appointed by the attorney general and charged with looking into all things Russia and elections.

Attorney General Jeff Sessions has recused himself from Russia decisions. So it would fall to Deputy Attorney General Rosenstein to take this step, if it occurs. (That seems a long shot, as it would be a not-so-tacit admission that firing Comey was a bad political move.)

On Wednesday, Senate Minority Leader Chuck Schumer (D) of New York reiterated his call for a special prosecutor. Such an official would not be subject to day-to-day supervision by the Attorney General or anyone else at the Justice Department, Sen. Schumer said.

“That means the special prosecutor would have much greater latitude in who he can subpoena, which questions they ask, how to conduct an investigation,” Schumer said.

This is true, but “special” is not the same thing as “independent." Special counsels answer to the attorney general, points out a 2013 Congressional Research Service report on the subject. They “may have their prosecutorial or investigative decisions countermanded by” the attorney general, the report adds.

The second way of starting up a new Russia investigation might involve some kind of new congressional entity, either a special committee, or a congressional commission.

Sen. John McCain (R) of Arizona has long called for the former. That would involve collecting an ad hoc group of existing lawmakers into a committee limited to looking at Russia election issues.

Other members, such as Rep. Justin Amash (R) of Michigan, have publicly talked about the latter approach. That would entail a congressionally picked group of outside wise men and women to study Russia questions. A good example of this was the 9/11 Commission, a group of five eminent Republicans and five eminent Democrats, chaired by Republican Thomas Kean, former governor of New Jersey.

In the current charged political environment, a national commission might be the only path to a new approach acceptable to both parties.

“Trump couldn’t stand in the way of that” if Congress moves in that direction, says Prof. Banks of Syracuse University.

The problem here is that the congressional leadership does not seem to be moving in that direction. On Wednesday, with lawmakers still reeling from the shock of the Comey firing, Majority Leader McConnell made it clear that he would not support any additional inquiry.

“Today we’ll no doubt hear calls for a new investigation, which could only serve to impede the current work being done,” McConnell said.

The current work McConnell was referring to includes two congressional investigations as well as the FBI's investigation. One of these efforts, overseen by the House Select Committee on Intelligence, is currently a tangled mess, given the move by chairman Devin Nunes (R) of California to secretly visit the White House to view documents he said might help prove Trump’s accusation that he was wiretapped by President Obama during the campaign.

But the parallel investigation of the Senate Intelligence Committee, despite some signs of tension, seems to be proceeding in a serious manner. Chairman Sen. Richard Burr (R) of North Carolina and Vice Chairman Sen. Mark Warner (D) of Virginia have made an effort to project a bipartisan, adult image.

Sen. Burr on Tuesday said he was “troubled by the timing” of Comey’s firing. But he didn’t call for a special prosecutor or new independent commission.

The formation of a new investigatory effort would take some time, putting off the moment when the public might begin to get more answers. Given that the best hope for Democrats and GOP critics of the Comey firing might be to keep up intense scrutiny of the current FBI and Senate efforts. If President Trump truly wants to derail Russia investigations, the irony is that the dismissal of Comey may produce so much attention that it has the opposite effect.

Democrats are furious. Many Republicans are (secretly) annoyed and nervous. Cable news is in full-press mode. For the White House, the Comey firing has been an unanticipated explosion that may even affect its ability to get its legislative agenda through Congress.

Firing Comey may make Trump feel as if he has exercised power, in the short term. But that might not last, says Andrew Rudalevige, a professor of government at Bowdoin College who specializes in presidential management of the executive branch

“In the long term he may find it undermines his power in various ways,” says Rudalevige.

Given all this, what should voters look at to try and determine whether the Russia investigations are still on track?

Who Trump nominates to be the next FBI director, for one thing, and whether that person gets confirmed. If he picks an administration loyalist such as former New York City Mayor Rudolph Giuliani, or perhaps New Jersey Gov. Chris Christie, it will be an obvious sign he’s trying to exert much greater control over the course of the bureau’s Russia inquiry.

The pace of subpoenas could be another sign. On Wednesday, the Senate Intelligence Committee issued a subpoena for relevant documents from ex-NSA Michael Flynn, indicating a degree of seriousness about examining his role in the Russia affair. According to news reports, federal prosecutors have similarly begun issuing subpoenas for the business records of Flynn associates.

Federal subpoenas would mean the inquiry has moved into the purview of the larger Justice Department as well as the FBI. If it reaches that stage it would take a concerted and obvious effort to turn it off. Such an effort would almost certainly become public via media leaks.

“I’m not positive an independent prosecutor is necessary right now. It is still possible for the existing processes to work. But they have to be allowed to work,” says Andrew Rudalevige of Bowdoin.