The House’s Sweeping New Probe May Be the Biggest Threat to Trump Yet

More bad news for the president. Photo: NICHOLAS KAMM/AFP/Getty Images

Members of the House Judiciary Committee have an opportunity to provide an important service to the American public – as long as they don’t blow it.

On Monday, the committee opened a sweeping investigation into “obstruction of justice, public corruption, and other abuses of power” relating to President Donald Trump by requesting documents from 81 sources. The committee’s probe could potentially uncover more misconduct than Special Counsel Robert Mueller ever will. Committee Chairman Jerrold Nadler vowed to “hold hearings for the public to have all the facts.” The challenge will be to conduct the investigation effectively without compromising Mueller’s work.

In many ways, the congressional investigation offers advantages that Mueller’s probe lacks. According to the mandate issued by Deputy Attorney General Rod Rosenstein, Mueller has been investigating links between Russia and the Trump campaign relating to interference with the 2016 presidential election, matters arising in that investigation, and any obstruction of justice that might occur along the way. The House Judiciary Committee, on the other hand, has the power to investigate a much broader scope of possible misconduct. Congress can investigate anything over which it has power to legislate, and committees may explore matters that do not amount to crimes. As Nadler pointed out, his committee is charged with a number of responsibilities, including the duty to investigate “abuses of executive power.”

In addition to the broader scope of its powers, the congressional inquiry also differs from Mueller’s probe in its transparency. While Mueller is bound by grand jury secrecy rules and Department of Justice policies to prevent public disclosure of matters under investigation, congressional committees operate largely in the public. In fact, one purpose of the Judiciary Committee’s probe may be to avoid a scenario in which Mueller ends his investigation without any further public disclosure of his findings, as the special counsel regulations seem to permit. The Committee’s document requests stated that the recipient could limit his initial production to documents already disclosed to the special counsel, the U.S. Attorney’s Office for the Southern District of New York, law enforcement, other congressional committees, or in civil or other litigation. By collecting the same material that Mueller has already gathered, Nadler’s committee may be seeking to replicate Mueller’s investigation, but with materials that can be shared with the public.

With this opportunity before them, the Judiciary Committee needs to avoid missteps that could interfere with Mueller’s work or harm the effectiveness of its own investigation. To that end, here are three pieces of advice for Nadler.

First, hire professional help to conduct questioning. How many more hearings must we endure in which members of Congress take turns grandstanding to make political points, only to be parodied on Saturday Night Live? Asking questions in five-minute bursts provides no opportunity for effective follow-up and allows the witness to filibuster away the allotted time. House Democrats should hire counsel with the training and experience to conduct effective questioning. They should also pool their time so that the questioner can proceed as a prosecutor would at a grand jury session by methodically asking the essential who, what, when, where, and why of important matters, demanding explanations and details along the way, and pinning down witnesses to establish facts from which they cannot later walk away.

Second, be careful whom you immunize. Congress has the power to grant immunity to witnesses who invoke their Fifth Amendment rights not to incriminate themselves. By granting immunity, the Committee can then legally compel the witness to testify because their statements may not be used against them. As we saw in the case of Oliver North, however, immunity granted by Congress can prevent prosecutors from using the witness’s statements, or any leads derived from their statements, against them in criminal proceedings. After the former Marine Corps. lieutenant colonel was convicted for his role in obstructing the investigation of the Iran-Contra affair, North’s conviction was vacated because it was tainted by the use of information derived from his immunized congressional testimony.

If the House Judiciary Committee wants to question witnesses, it should avoid immunizing anyone who might be a target of Mueller’s investigation. Donald Trump Jr., for example, has reportedly not met with Mueller, a sign that he may be a target of the special counsel’s investigation. Offering him immunity to testify before Congress could make it much more difficult for Mueller to charge him criminally. Instead, the Judiciary Committee might focus on witnesses who have already been convicted by Mueller, such as Michael Flynn, George Papadopoulos, and even Paul Manafort. Congress could also call as witnesses people who were in positions to have committed less egregious misconduct, yet possess valuable information, such as Trump’s former communications director Hope Hicks or his longtime assistant Rhona Graff. These witnesses are unlikely to be high priorities for criminal charges. Or, better yet, the committee should clear with Mueller any witness that the committee might want to immunize.

Third, don’t just copy Mueller’s work, create your own roadmap. The evidence that Watergate Independent Counsel Leon Jaworski turned over to Congress is sometimes referred to as a roadmap for impeachment. While Nadler appears interested in obtaining and memorializing Mueller’s work, he should not end there. Mueller is limited to looking for federal crimes. But just because conduct does not amount to a violation of the criminal code does not mean that Congress should permit it to occur unchecked. For example, while lying to the public is not a crime, if the lie is egregious enough, it might be sufficient to disqualify a president from office. Additional lines of inquiry outside of Mueller’s mandate would be well within the scope of proper congressional inquiry, such as foreign influence on the president’s businesses, profits from his businesses that may constitute prohibited emoluments or use of the presidency to enrich family members and associates. Were Jared Kushner or Erik Prince attempting to form back channels of communication with Russia and the UAE? And if so, why? The House Judiciary Committee can find out the answers to all of these questions, even if they are outside the realm of potential criminal misconduct.

Nadler has a job to do, but he must do it well. The stakes of this investigation are high because the House Judiciary Committee has one power that all other entities lack – the power to initiate impeachment proceedings.

Sweeping House Probe May Be the Biggest Threat to Trump Yet