So Far Only the Media Have Been Doing Their Job. Now It’s Congress’s Turn.News at Home
Ray Smock is director of the Robert C. Byrd Center for Congressional History and Education at Shepherd University, Shepherdstown, WV. He was historian of the U.S. House of Representatives from 1983 to 1995. He is co-editor of "Congress Investigates: A Critical and Documentary History" (2 vols. 2011).
Illustration by Wes Jenkins
Calls for investigations of the Trump campaign’s contacts with Russian agents, the alleged Russian hacking of Democratic Party officials including Hillary Clinton, then Democratic National Committee Chairwoman, Debbie Wasserman Schultz, and Clinton campaign director John Podesta and others could involve investigations by House and Senate committees, the establishment of a special prosecutor, or an independent commission, not unlike the 9/11 Commission that investigated the attacks on the Trade Towers, the Pentagon, and the loss of Flight 93 on September 11, 2001. Whatever investigations do emerge, all will be fraught with pitfalls and perils that may not get to the bottom of the complex and murky Russian connections to the presidential election of 2016.
So far only members of the American press are doing their jobs of exploring these issues. Daily revelations from leading news sources like the New York Times and the Washington Post are pushing the issues forward. The news climate today is eerily similar to the long and tortuous lead-up to the Watergate investigations that eventually brought down the presidency of Richard M. Nixon.
Congress is still testing the waters regarding investigations. The House and Senate Intelligence Committees are feeling their way through the maze and trying to find a way to narrowly investigate specific matters without having the investigation spill out into a possible impeachment inquiry. In the meantime, suggestions from a few members of both parties and from citizens across the country are increasingly calling for an independent investigation because the matters are so serious and fraught with political peril. Reports in the media suggest also that it would be impossible for Republican controlled committees in Congress to do a fair job of investigating the actions of the Republican president, especially in this time of hyper-partisanship and in the wake of the most unusual presidential election in American history.
It is of the utmost importance that these matters be seriously investigated. The issue is Russian espionage and the possible collusion on the part of persons working on behalf of presidential candidate Donald Trump. We are talking about breaking and entering on the scale of the Watergate burglary that brought down President Richard Nixon, except the burglary this time was by electronic means. No break-in to the Democratic Party headquarters in the Watergate Complex was necessary to gain information about party strategy. Just hack the email accounts of Democratic Party officials. The crime is the same. Only the method of accomplishing it was different.
The purpose of all congressional investigations throughout American history has been to get to the bottom of a troubling issue that threatened the Republic, that were crimes or malfeasance in office, that uncovered fraud and government waste, or exposed hidden evils that undermined law and order. Congressional investigations are one of the implied powers of Congress. Nowhere in the Constitution does it spell out how and when such investigations should be undertaken. But since the early origins of the nation Congress has investigated a wide variety of important matters beginning with the reason why Indians in Ohio country defeated the American army in 1792, the burning of Washington, D.C. at the hands of the British during the War of 1812, President Jackson’s assault on Second Bank of the U.S., various investigations into the Civil War, the impeachment of Andrew Johnson, Ku Klux Klan violence in the South, financial scandals and schemes related to the “Money Trust” and Teapot Dome, the Stock Market Crash, the Pearl Harbor Inquiry, the Kefauver Committee on Organized Crime (1950-51), the McCarthy-Army Investigation (1954), the Watergate Committee of 1973-74, the Church Committee on the Intelligence community (1975-76), Iran-Contra (1987), Whitewater Investigations and the Impeachment of Bill Clinton (various investigations from 1982-98), and the most well-known recent inquiry, the 9/11 Commission (2002-04).
The history of Congressional investigations reveals the limits of this practice, but also demonstrates its importance to the nation. Many of these investigations were window dressing, where no good conclusions were reached. Too often Congressional investigations are politically motivated by Congress abusing its power for political gain. Never was this clearer than the recent multiple investigations led by Republicans to discredit Secretary Hillary Clinton for alleged negligence that led to the deaths of an American Ambassador and embassy workers in Benghazi. Kevin McCarthy, the Republican Majority Leader in the House of Representatives, famously blurted out the truth on Fox News, shocking the political world with his candor when he explained that the Benghazi investigations were designed to erode Secretary Clinton’s presidential campaign.
The Kefauver Organized Crime investigations in the early days of television captivated Americans who learned about the “Mafia” for the first time and the hearings launched Estes Kefauver’s presidential campaign. While the hearings raised public awareness of organized crime in America, little of practical value emerged from the hearings. Senator Joseph McCarthy used the power to investigate to search for communists inside the American government, especially in the State Department. He never found any but he brandished lists of reported subversives and his hearings and the earlier similar hearings by the House Committee on Un-American Activities, managed to add considerably to the communist hysteria of the time. Both the McCarthy hearings and the earlier HUAC hearings demonstrated the corrosive nature of excessive partisanship in such investigations.
In one of the most serious and flagrant actions of an American president and his administration, the Iran-Contra affair involved a secret operation wherein the Reagan Administration illegally sold missiles to Iran in order to free American hostages held in Lebanon. The money received for the missile sales was then illegally used to fund Nicaraguan rebels, known as contras, who were favored by the Reagan administration.
Congress created a joint committee to investigate Iran-Contra and concluded they found no direct or compelling evidence that President Reagan ordered the illegal operation. The Reagan Administration also set up an independent investigation led by former Senator John Tower, with a special counsel Lawrence Walsh. The Congressional investigation and the independent investigation often worked at odds with one another. Congress gave limited immunity from prosecution to two key participants to gain their testimony. These were John Poindexter and Oliver North. Special counsel Lawrence Walsh, after an investigation lasting six years, brought indictments against fourteen individuals in the Reagan Administration. By then the statute of limitations for some charges had expired and Poindexter and North had their convictions overturned because of the partial immunity granted by the Congressional investigation. Six other convictions were still pending when President George H.W. Bush pardoned them as his presidency came to an end in 1992. Nobody seemed to have the will or the interest to undermine the legacy of Ronald Reagan even if it meant ignoring serious crimes worthy of impeachment for the president and jail sentences for many in his administration.
When the historian Arthur Schlesinger, Jr. and his associate editor Roger Bruns set out to edit five volumes on the history of Congressional investigations, in the mid-1970s, Watergate was in the news. That major constitutional drama was unfolding as they did their work. Schlesinger turned to Federalist 51 for his theme in understanding Congressional investigations. That classic essay, written by James Madison, is about the necessity of government to control the governed but also the necessity of government to control itself. Schlesinger pondered that the success of the United States going forward would be in how well Congress would play its role in helping government to control itself.
Investigations are an essential part of the system of checks and balances in our Constitution. No person, no agency of government, no branch of government can be above the law and not subject to the rule of law. In the end, the most important goal is that the people of the United States must know that their government is functioning within the law. Without this certain knowledge, the entire enterprise, the entire Constitutional government of the United States, could collapse into anarchy.
In the current atmosphere of potential investigations into Russian collusion in the presidential election and related matters, what is at stake is proving that the Trump Administration is trustworthy and honest. As we all ponder how best to move forward with the unprecedented circumstances of an unlikely president, with no prior experience in government, who may have thought all along that he was above or immune from the law, or that he was ignorant of the proper conduct of an American candidate for president who had no business making deals or arrangements with foreign powers.
Whatever the case turns out to be, we must demand serious and impartial investigations by the press, by Congress, and perhaps by a special prosecutor or an independent commission. As we saw with Iran- Contra, a special prosecutor is no guarantee that we will get to the bottom of these troubling issues. But we must try. And we must succeed. We need to do so for the American people to be able to put our trust in government. President Trump and his administration, if innocent of wrong-doing needs to have this burden lifted to move forward. And if there is wrong-doing discovered of a serious nature, the people of this nation deserve to know because in this republic we are the power. We give our consent to be governed. We expect honest government and the rule of law in return for that consent.
It may very well turn out that we experience a series of investigations, each looking into specific charges. This is more likely than a broad, ill-defined investigation that is open-ended. Such investigations run the risk of being fishing expeditions. Bill Clinton holds the record for being the most investigated president in American history, accused of various crimes, which were accompanied by massive media coverage, rumors and innuendos, some involving Hillary Clinton as well as her husband. These investigations were heavily partisan in nature, especially the impeachment. Congress investigated Bill Clinton on eleven occasions; further investigations involved two special prosecutors, and additional investigations by the FBI and other agencies. None of this led anywhere until the President’s affair with Monica Lewinsky emerged. All the other investigations were dropped instantly for lack of evidence. The focus switched overnight to a sex scandal and the president’s lies about it. This led to his impeachment but he was acquitted in his Senate trial. When he left office his popularity was very high.
Yet the toll of the Clinton investigations was costly in many ways. Nor was President Clinton completely exonerated of various charges related to his lies. He settled civil suits, paid fines and lost his license to practice law. But by bringing partisan impeachment charges against him over lying about a sexual affair, the very nature of an impeachable crime was forever altered. Is a sex scandal an impeachable offense? Should it be? The House managers of the Clinton impeachment kept saying the crime was perjury, not a sexual affair. But they could never deny that the perjury was about a sexual affair.
The Clinton impeachment pales in significance to what we are contemplating in the Trump case, where the matter has nothing to do with sex and possibly everything to do with espionage against the United States. We should not make the mistake of investigating Trump and members of his administration because he is a surprise winner, an amateur president with little experience and a general ineptitude that is shocking to both Democrats and many Republicans. He should not be investigated just to hound him out of office, the way Republicans hounded the Clintons for years.
For any investigation or investigations to move forward, they should do so firmly planted in the rule of law, the Constitution, and the pursuit of justice for the American people. This should not be a partisan witch hunt against this unlikely president and his peculiar cabinet. The fact that Congress and the Executive branch are both controlled by Republicans, some members of Congress and executive agency officials may be looking to protect their own party first and to find ways to stifle investigations. This would be a terrible mistake that would ultimately damage the Republican Party, not to mention the entire nation. This needs to be about fact-finding and justice and conducted with the highest integrity. This is not about party politics. If it is, all is lost.