The following is by Asha Rangappa, former FBI counterintelligence agent and current associate dean at Yale Law School. This was originally published at The Hill.
It seems like every day there is a new disclosure about Russia’s interference in the presidential election (Friday it was the news that 21 States’ voting machines may have been breached).
And every day, Americans place their faith in one man: Robert Mueller. Mueller is great; indeed I used to work under him as a special agent. But Mueller is a creature of a particular legal regime, the special counsel regulations. And those regulations are about law enforcement, at a time when the daily disclosures are about counterintelligence. That is why we need a bipartisan commission to investigate the matter and produce a comprehensive public report.
Those who are hoping that Mueller’s investigation will publicly expose the full scope of Russia’s efforts will be sorely disappointed — and neither congressional intelligence committee currently investigating the issue has the capacity to fill in his gaps.
Although Mueller has a broad mandate to investigate Russian election interference and any crimes arising from it, he does not have the authority to produce a public report. The special counsel regulations, which were written in 1999 against the backdrop of Kenneth Starr’s sprawling Whitewater investigation (and his invasive report to Congress about Monica Lewinsky and Bill Clinton), contemplates parameters and accountability for a criminal investigation — not a counterintelligence one.
As a result, Mueller is only required to provide to the Attorney General – or in this case, Deputy Attorney General Rod Rosenstein — a report explaining the criminal charges he both declines and recommends for prosecution. Not only is this report confidential, but Rosenstein would only be required to notify congressional judiciary committees of the report if he decides to depart from the Mueller’s recommendations. The report itself, however, could very well could remain under wraps.
Even if Mueller uncovers enough criminal activity to warrant charges, any prosecution would only reveal a slice of the big picture. A criminal trial would produce public evidence only related to specific activities that crossed the line into criminal behavior and which Mueller believes could be proven beyond a reasonable doubt.
Having conducted counterintelligence investigations, I can attest that not everything a foreign intelligence service does is necessarily illegal. For example, populating public social media platforms like Facebook and Twitter with fake accounts and bots isn’t necessarily a crime, and neither is assessing and approaching American targets for recruitment — these details, however, are important to understanding the full scope of how Russia executed its covert operations in the U.S.
Further, Mueller may decline to press certain charges because proving them could result in exposure of classified information or sensitive methods and sources. And if President Trump grants a pardon to anyone indicted before trial — or figures out a way to fire Mueller — there may not be any prosecutions at all.
The (lack of) progress made by the House and Senate Intelligence Committee demonstrates that they are not capable of adequately supplementing Mueller’s investigation, nor picking up the pieces if he is dismissed. The House Committee’s partisan kabuki dance has only further obfuscated the Russia investigation for most Americans, and even the Senate Committee’s more deliberate approach has been unsuccessful — its attempt to question attorney Michael Cohen last week ended like a bad family Thanksgiving dinner, with Cohen walking out mid-interview and releasing a public statement against the committee’s wishes.
Even apart from this chaos, the bandwidth of these committees is simply not broad enough to address the mind-boggling breadth of Russia’s operations, which now includes social media, state voting systems, and overseas actors like Wikileaks, not to mention potential ties to the Trump campaign. After all, these same committee members also have to attend to pressing issues like health care, and preventing nuclear war — there are only so many hours in the day.
Each new revelation of Russia’s active measures increases the urgency for Congress to create an independent, bipartisan commission to investigate the full scale of Russia’s interference and produce a comprehensive report to the public. A commission would not only be able to investigate how Russia was able to execute its ambitious operation, but also address policy issues that are beyond the purview of Mueller’s investigation, like closing loopholes on social media platforms and reinforcing cybersecurity for state and local voting infrastructure. Most importantly, it would send a unified message to Russia that despite our internal political differences, the United States will not tolerate a foreign attack on our democracy.
Over the last 50 years, the United States has risen above partisan politics to address serious violations of civil rights, presidential misfeasance and foreign attacks on U.S. soil. The Church Committee, the Iran-Contra Commission and the 9/11 Commission all took the time to thoroughly investigate issues of pressing public interest — and all resulted in a significant overhaul of our intelligence and government accountability requirements. We have dedicated significant time and resources to investigating our own intelligence agencies — it is only logical that we would do as much, if not more, to investigate a hostile foreign intelligence service that assaulted and subverted our most fundamental democratic process: a presidential election.
Russia can only succeed in its efforts if it continues to operate in the shadows. Transparency and accountability — two hallmarks of our democracy that Russia does not support nor practice — are what will render them ineffective. It’s time for Congress to part the clouds and let in the sunlight.