Demands for independent investigations are flying after President Trump’s firing of FBI Director James Comey and Comey’s allegation that Trump asked him to stop an investigation of former national security adviser Michael Flynn. On top of possible obstruction of justice, Democratic lawmakers want to probe Russian meddling in the 2016 election and potential Trump campaign collusion with Russia to influence the outcome.
At the core of demands for independent review are age-old concerns that the executive branch cannot fairly and thoroughly investigate itself. Beyond an FBI and Justice Department investigation, which is ongoing in the case of Russia’s election interference, here are other ways to dig for the truth.
These are not criminal probes but are conducted under the legislative branch’s constitutional authority to exercise oversight over the executive branch.
Regular committees: The Senate and House regular committees on intelligence, oversight, and judiciary — which are controlled by the majority part of each chamber — can dig into potential wrongdoing, subpoena records, and call witnesses to testify. In the case of the Trump/Russia probes, the House and Senate intelligence committees have begun formal investigations, and the House Oversight Committee is getting into the fray.
Select committee: The House and Senate can convene special, bipartisan committees of lawmakers to dig into particular matters, with staff lawyers and team of investigators.
Joint committee: The House and Senate can set up an independent, bipartisan committee made up of both House and Senate members to investigate.
Independent commission: Congress can set up an independent commission, made up of various specialists from outside of Congress, to conduct deep investigations. The 9/11 Commission, which exhaustively documented government failures and the circumstances around the 2001 terrorist attacks, is an example.
Impeachment: The standard for impeachment is contained in the US Constitution: The president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.’’ The House can vote to impeach a president, and then the Senate would conduct a “trial’’ to determine if the president is guilty and therefore removed from office.
Special prosecutor: In the wake of the Watergate scandal, Congress set up a special prosecutor law in 1978 but allowed it to expire in 1999. To bring back a law authorizing a special prosecutor, also known as an independent counsel, with wide-ranging authority and independence, Congress would have to pass a bill restoring the law, which is unlikely to happen in the current Republican-controlled Congress. The 1978 law permitted selection of a special prosecutor by a three-member panel of the US Court of Appeals in Washington, acting on a request after by the attorney general. Congress, through a vote, could request that the attorney general seek a special prosecutor.
Special counsel: With the expiration of the special prosecutor law in 1999, the Justice Department set up regulations for a special counsel to independently investigate potential crimes. Appointment of a special counsel is up to the discretion of the attorney general, who exercises substantial control over the counsel’s activities. In the investigation of possible Trump campaign collusion with Russia to influence the 2016 election, Attorney General Jeff Sessions has recused himself because of his own undisclosed contacts with Russian officials during the campaign. That means selecting a special counsel would likely fall to Deputy Attorney General Rod Rosenstein.
Indictment: There is legal dispute about whether a sitting president can be indicted. Many scholars believe a president must first be removed from office through impeachment, or resign, and then be indicted. Others have argued that legal immunity of a president is not absolute. The Supreme Court has never ruled on the matter.
THE WILDEST OF WILD CARDS:
The 25th Amendment: Under this section of the US Constitution, the vice president and a majority of the Cabinet can petition to the Congress if they feel the president is unable to discharge the duties of his office. Congress can then install the vice president in the Oval Office with a two-thirds vote.