Exclusive: Watergate lawyer outlines options after Comey firing

Posted at 3:00 PM, May 10, 2017

After FBI Director James Comey’s sudden firing Tuesday, lawmakers renewed calls for an independent investigation into ties between Trump associates and Russian operatives.

"The only way the American people can have faith in this investigation is for it to be led by a fearless, independent special prosecutor," Senate Minority Leader Chuck Schumer said.

Beyond the current FBI and congressional investigations into allegations of Russian interference in the 2016 election and ties between the Trump campaign and Russia, what else could be done?

Scripps National investigative reporter Mark Greenblatt sat down with Richard Ben-Veniste. He served as chief of the Watergate Task Force of the Watergate Special Prosecutor's Office, the Democrats chief counsel of the Senate Whitewater Committee, and also was a member of the 9/11 Commission.

Ben-Veniste outlined the various options for an independent investigation. The interview has been lightly edited for clarity.

Congressional select committee

Ben-Veniste: (A select committee) would probably be made up of members of the intelligence community within Congress.  So, the Senate intelligence committee, and perhaps a bi-cameral committee that involves the House Intelligence Committee members.    

Greenblatt: And how does that get set up? Who decides if there will be a select committee and what powers it will have?

Ben-Veniste: You would need a sufficient number of Republicans to cross lines to determine that the interest of the public in having a credible investigation of these important issues trumps party loyalty. They would have to oppose party leadership, which would oppose the creation of a robust committee. There’s a long, long history in this country of the right of Congress to investigate. They can’t prosecute but they can investigate. 

Greenblatt: But what’s wrong with just leaving it in the hands of the current congressional investigating committees?

Ben-Veniste: Right now (the committees are) under-resourced in my view. And they need to get going … in a robust fashion. And expanding to a select committee status would do so and provide rights to the minority in calling witnesses and issuing subpoenas.

Special counsel

Special counsel is an updated term for a special prosecutor — a term that was used into the 1980s, when laws around the special prosecutors expired. New laws mandated that allegations against certain high-level government officials require a special counsel independently selected by a panel of judges from U.S. circuit courts. After Bill Clinton's impeachment, the special counsel laws expired and were not reauthorized in 1999. A special counsel can be appointed via two methods:

  1. Congress could pass a new law. It would require broad bipartisan support to pass both houses of Congress — enough to override the possibility of a Trump veto when the bill crosses his desk.
  2. The attorney general can appoint a special counsel. However, since Jeff Sessions has recused himself from the Russia investigation, that responsibility would now fall to Deputy Attorney General Rod Rosenstein. It was Rosenstein who recommended Comey’s dismissal.

Greenblatt: Does the deputy attorney general’s role in the sudden firing make his recommendation of a special counsel less impartial?

Ben-Veniste: The idea of a special counsel is to provide assurance of impartiality. So, we have seen that the performance of a special counsel is very much determined by the credentials and integrity and capacity to perform the job … who provides the public with the kind of assurance that the investigation will be conducted with integrity and impartiality.

Investigative commission

Greenblatt: What’s the difference between a congressional select committee and a commission?

Ben-Veniste: Well a commission can be whatever Congress wants it to be. The 9/11 Commission was appointed by a combination of Congress and the president of the United States through an executive order. Now the president at first didn’t want to create such a commission but eventually he was persuaded as a result of a public outcry and an outcry that was irresistible politically, to have such a commission examine the facts of why we were unable to prevent the 9/11 attacks from occurring and how we might harden our defenses against a repetition.  So, the president appointed the chairman of the commission and the members of Congress appointed the other members — five Democrats and five Republicans. The reason why the 9/11 Commission was so successful was in part – in large part – the nature of the individuals who were appointed who decided to work together, put aside partisan differences and put ahead of everything else the welfare of the United States.

Greenblatt: Stack these for me in levels of independence, authority, power and resources. If the American people want the strongest, most independent form of an investigation from this day forward, would it be a commission, a congressional select committee or a special counsel?

Ben-Veniste: Well none of these things is mutually exclusive. And in the past they have worked together and have worked largely well together. So, there is overlap between the roles of each of those entities. … I would suggest that the most effective way to investigate this is through a combination of investigative resources, such as provided by the FBI, together with a dedicated impartial professional prosecutor who is capable of selecting a staff of capable persons to assist. And to present evidence to a grand jury which would then determine whether there was sufficient evidence to return indictments. That’s the most robust way in going forward.