There Is No Truth Commission in L’Affaire Russe

On Thursday, Benjamin Wittes published his assessment of Deputy Attorney General Rod Rosenstein’s Dec. 13 testimony before the House Judiciary Committee. While I understand Ben’s considerable concern about the nature of the politics the hearing so openly displayed, I do think Rosenstein did two things that defended the credibility of the special counsel’s investigation. But beyond the extent to which Rosenstein did or did not stand up for the special counsel probe, the testimony was marked by a brief exchange between Rosenstein and Rep. Darrell Issa that highlights an essential question: whether any of the ongoing investigations—congressional committees or the special counsel—will reveal a true narrative of the events under investigation.

Rosenstein did two notable things in his testimony. First, he unequivocally stated that there has been no activity justifying firing the special counsel for cause. He also went to great lengths to explain why Bob Mueller is uniquely suited to lead this investigation, and outlined, for anyone who doesn’t already know it, Mueller’s extensive prosecutorial and leadership experience, as well as his lifelong dedication to public service. Many know that Mueller is a decorated Vietnam veteran and served with steely determination as FBI director for twelve years, assuming the post just days after the 9/11 attacks. Fewer may know that he served in senior executive leadership positions at the Justice Department in both Bush administrations. And, after serving as head of the Criminal Division during the first Bush presidency and then briefly spending time in private practice, he returned as a line prosecutor to the U.S. attorney’s office in Washington D.C., prosecuting homicides—a voluntary return to the boiler room of the Justice Department that former Senate-confirmed assistant attorney generals just don’t make. Fewer still may have a full appreciation for his stewardship of the FBI after the 9/11 attacks, when the organization came under heavy criticism and was threatened with the extraction of the agency’s national security wing. Holding off those efforts, Mueller launched and oversaw a major transformation and protected the FBI as an institution. He was, and is, deeply respected in and out of the community.

Second, Rosenstein affirmed his own authority over the special counsel’s investigation, and revealed that he is regularly exercising that authority. For those who might think that Rosenstein appointed the special counsel and then has allowed Mueller to operate wholly independently in a way that could expand the scope of the investigation without oversight, Rosenstein’s testimony rebuffed that theory. While Rosenstein did not reveal how granularly he is involved in overseeing the investigation (though, I don’t read the appointment order to require the special counsel to seek the deputy attorney general’s approval for each charging document his team prepares, for example), a reasonable conclusion from his remarks is that Rosenstein is regularly briefed on the investigation and the path it is on, and he is consulted, as needed, by Mueller or members of his team. In short, Rosenstein gave the impression that he is engaged, informed, and affirmatively exercising his oversight role over the special counsel’s activities.

But it was Rosenstein’s exchange with Issa that brought to mind how all of the ongoing investigations, even if conducted honestly and effectively, may not ever establish the ground truth of what really happened during the 2016 election and during the transition. Their exchange took up—probably inadvertently—the loaded historical question of whether a special counsel’s job is to seek the truth. Even if they stumbled into it, their inquiry is important because the current special counsel regulations were crafted, in particular, with the exhaustive truth-seeking nature of the Independent Counsel Act, as exercised by Ken Starr, in mind.

Issa came to the hearing with a perspective that the special counsel’s team is looking to “hang” the president, suggesting that the team seeks facts to fit their goal of prosecuting crimes:

Rep. Issa: [The special counsel’s team] are a group looking for wrongdoing … they’re not looking for right-doing; they’re looking for wrongdoing …

DAG Rosenstein: The way I would characterize it, Congressman, is they are looking for the truth … and then they’ll make a determination whether it’s appropriate to prosecute. [unofficial transcript]

Is the special counsel’s office on a broad search for the “truth” and then charging what they can? I certainly wouldn’t put it that way. The special counsel’s office will investigate what they are supposed to investigate based on the deputy attorney general’s order and bring charges as appropriate. There is nothing in the special counsel regulations or the Rosenstein appointment order that requires the special counsel to create a narrative of what happened, or, to write a public report. The Special Counsel is an investigative and prosecutorial office; it is not a truth commission.

John Carlin, who before serving as head of the National Security Division was senior counsel to Mueller during his directorship, identified this issue in a Washington Post piece early this summer:

At least where Trump is concerned, if Mueller decides not to bring charges, that might not bring the closure all sides are expecting from his investigation unless it is accompanied by an assurance that any evidence that the president may have broken the law (if such evidence is found) will be turned over to Congress.

At present, we don’t have that assurance. In fact, we don’t even know that Mueller will turn over anything of value to Congress at the end of his investigation. Justice Department regulations require a special counsel at the conclusion of an investigation to provide the attorney general (for Mueller’s purposes, Rod J. Rosenstein, who is acting attorney general for this investigation, given Attorney General Jeff Sessions’s recusal) with a “confidential report” that explains the decision to pursue or decline prosecution. Those regulations also require the attorney general to report to senior members of the House and Senate Judiciary committees when a special counsel concludes an investigation. But although the rules state that these reports should include “an explanation” for the special counsel’s decisions, they do not say that those reasons must be made public — nor that the reports must be detailed enough to allow Congress to take over the investigation. As for the special counsel’s underlying report, the rules suggest it would never see the light of day.

What might happen with that confidential report became more interesting in light of the Justice Department’s actions this week. As John flagged months ago, there is no requirement that the special counsel’s report be public. If we ever reach that day, I wonder, will whoever is acting as attorney general keep the report confidential? Up until this week, that seemed more likely than not. Rosenstein has made the point at his congressional appearances—even this week’s—that: He. Does. Not. Talk. About. Ongoing. Investigations. His views on government officials commenting on closed investigations that are not brought for prosecution are well-established.

And yet, oddly, the Justice Department chose to release the intimate (not “private,” folks, if they were communicating on government-issued devices) text messages of two FBI employees before the DOJ Inspector General investigation into their conduct is complete. That leads me to wonder: Will the department find the special counsel’s final confidential report of lower public interest than the text messages?

In any event, even if the special counsel’s office uncovers evidence of additional criminal activity, and even if that activity is more closely related to the Russian election hacking activity, structurally and institutionally, that office is not designed to provide a public accounting of L’Affaire Russe. And a memorandum explaining the reasons for prosecuting or not prosecuting is still not quite the same thing as a narrative report, written-for-release. Instead, investigating and report-writing for public consumption are tasks that congressional committees engage in regularly. Both intelligence committees are conducting investigations, and, for the past several months, Senate Select Committee on Intelligence (SSCI) Chairman Richard Burr and Vice Chair Mark Warner have taken great pains to signal that they are working together in a bipartisan, meaningful and productive way.

But in spite of those indications, Burr floated the idea last week in an interview at the Council on Foreign Relations with David Sanger, that even the SSCI report, whenever it is issued, might not provide an authoritative consensus account of what transpired surrounding the 2016 election. Carefully choosing his words, Burr suggested that one possible outcome is that SSCI might produce a three-part report: one document containing agreed-to facts; and then two other documents he described as majority and minority views.

While the fact section would be an important step forward, what Burr outlined sounded like the type of report that might fall short of providing an authoritative account that takes the facts, provides accurate context, and delivers a cohesive narrative. It sounded quite different than the type of report issued by, for example, the 9/11 Commission, which was one report, endorsed by the bipartisan independent commission, that provided one comprehensive factual narrative combined with one set of recommendations.

The moment available to enact legislation creating an independent commission into the 2016 election has passed, as has the window of opportunity to create a congressional joint inquiry. At some point, these investigations will draw to a close. The public will be much closer to understanding what happened. But an enduring narrative may still need to be written.