Donald Trump hardly welcomed the appointment of a special prosecutor to look into the relationship between his presidential campaign and Russia—in fact, he called it a “witch hunt” on Thursday morning—but if I were him, I’d go big: Embrace the American people’s hunger for the whole truth about what happened during the campaign and the first months of the administration—and who leaked what about whom—and call for an independent commission. If he truly believes he did nothing wrong, as he said in Wednesday’s statement, it’s the best way to prove it once and for all.
Why a commission? Because Deputy Attorney General Rod Rosenstein’s appointment of former FBI director Robert Mueller as special counsel will not solve the problem at hand. His mandate is quite limited. According to the memorandum released by Rosenstein, Mueller will be authorized to “prosecute federal crimes arising from the investigation of these matters” which includes “any matters that arose or may arise from the investigation.” But even if there was coordination between the Trump campaign/administration and the Russians, it is unlikely that any federal crimes were committed. Nor would there be anything criminal about the president unwisely disclosing information to the Russians that might allow them to discover intelligence sources and methods. He has the authority to declassify whatever he wants, even if it’s a bad idea.
The purpose of appointing a special counsel within the Justice Department is not to learn the whole truth. The object is to develop admissible evidence against particular targets and determine whether that evidence is sufficient to bring a prosecution. There is no search for exculpatory evidence or for information that is neither inculpatory nor exculpatory, but that frames the big picture. Moreover, the work of a special prosecutor is done in secret. He hears no testimony in public and generally produces no report. If he decides to indict, the indictment is his report. If he decides that no indictment is warranted, his appropriate course of action is to simply say that, with no further comment. If he decides to produce a report, it likely to be one-sided, since prosecutors generally focus on evidence that points to guilt.
A grand jury only hears one side: the prosecutor’s. Defense attorneys cannot question, and the accused—at this stage there’s been no official pronouncement on who exactly that person or people may be—do not have the right to have counsel present in the grand jury room.
The role of a special counsel, like every prosecutor, is adversarial. Neither a criminal investigation nor a criminal trial is a search for truth. It may be a search for justice, but justice and truth are often incompatible as evidenced by the maxim that it is better to let 10 guilty people go free than for one innocent to be wrongly convicted. The rules of evidence—which exclude much truthful information—are not the same rules that scientists use in determining the truth. Scientists don’t have exclusionary rules based on privacy and other constitutional rights.
Finally, it is unlikely that the president could be prosecuted for obstruction of justice. So the special counsel will probably not get to the bottom of what happened.
If the public wants to find out what really happened, the best approach would be to have Congress do what it did after the Challenger disaster in 1986 and after the 9/11 attacks: Appoint a non-partisan investigatory commission comprised of objective experts and highly regarded truth seekers. And Trump should insist on it.
There is no incompatibility between such a commission and the special counsel; while there may be some overlap in the evidence considered, each would consider information that is not central to the job of the other. A commission would be looking as much to the future as the past. At the end, the American public would learn the whole truth about any alleged connections between the Trump campaign/administration and Russia, as well as the truth about the dangers to national security caused by leaks to the media from within the government.
It is crucial that everyone on this independent commission embody precisely that trait—“independence.” The only way to find out what really transpired between Trump’s associates and Russia is to have a probe overseen by nonpartisan—as distinguished from bipartisan—individuals who are competent, capable and respected in their relevant fields. Importantly, they must have no allegiance to either party, but display loyalty only to the truth.
People who fit this specific mould may include: career prosecutors who have extensive experience working for both Republicans and Democrats, diplomats, university professors, leading scientists, religious and civic leaders. We need people who stand for and seek the truth to engage in this process, which is sure to be complex and high-pressured, and require nuance that has so often been lacking from recent political discourse.
Precedent suggests that an independent commission is crucial to uncovering truth. Consider the Rogers Commission of 1986, which was put into motion by President Ronald Reagan to investigate the Space Shuttle Challenger disaster. The independent body, headed by former Secretary of State William Rogers, aimed to determine the cause of the explosion that took place just a minute after the mission took off as millions watched on TV. A diverse group of individuals served on the commission, including Neil Armstrong, a retired astronaut, Robert B. Hotz; an editor of a space and aviation publication, and Sally K. Ride; the first woman in space from the United States. Richard Feynman—the late physicist and Nobel laureate—is most remembered for demonstrating the poor quality of the flawed part—the ‘O-ring’—by dropping it into a cup of ice water, where its rubber dented in front of a jam-packed hearing. The commission’s unvarnished findings, unfettered by partisanship, were taken seriously by Reagan and led to NASA improving its safety standards.
Although the Rogers Commission was not dealing with partisan issues, the subsequent 9/11 commission was certainly dealing with issues that could have a partisan spin. One of the key problems singled out by the commission for a later review was “the fragmentation of congressional oversight over the nation’s security efforts.” It also dissected the role and failures of various government agencies and political appointees—clearly issues entrenched in politics. Nonetheless, the commission produced a 600-page report that led to important changes.
Analogies to past investigations will always be imperfect, especially in our hyper-charged partisan environment. But if I were President Trump, I would jump on the proposal to have Congress appoint an independent commission. If he’s innocent, it’s the best way to exonerate him. And even if he’s not, it’s the best way to discover the whole truth and not the partisan, partial truths favored by many politicians, journalists and pundits—and, most important, prosecutors.