As the FBI conducts a “counterintelligence investigation” into possible collusion between Russia and the Trump campaign, both the House and Senate intelligence committees are conducting their own inquiries into Russian involvement in the 2016 election. Although the Senate appears to be functioning well, the House has stumbled.
It is difficult to get politically charged congressional investigations right, especially when they touch the president. Yet the results of the inquiries will be meaningless unless the American people have confidence that they were done thoroughly and fairly. Here are the pitfalls of past inquiries that should be avoided at all costs.
▪ They were media-hungry.
In 1975, the House Select Committee on Intelligence began investigating whether the FBI and the CIA were illegally spying on U.S. citizens and whether the CIA was involved in coups abroad.
At one point, the committee informed the Department of State, where I was working as an attorney, that it had obtained information indicating that Secretary of State Henry Kissinger had learned of a planned coup overseas but had not informed the head of state there because Kissinger wanted him assassinated.
The committee planned to release the story the next day unless we could disprove it. The story was not true, but members of the committee who happened to be politically opposed to Kissinger were so eager for this damaging bit of information to be real that we were barely able to convince them they were wrong.
The committee ultimately lost all its credibility when its draft report was leaked to the media. No committee chairman should want this legacy.
▪ They were partisan.
On the joint congressional investigation into the Iran-Contra affair, on whose staff I served, some Democratic members were convinced that President Ronald Reagan had knowingly violated a prohibition on arms sales to Iran and a statute limiting his ability to provide support to the Contras, who were fighting the Sandinista regime in Nicaragua. This conviction led to wistful thoughts of impeachment.
The Republicans sought to defend Reagan, resulting in much finger-pointing and bickering. This led to an almost singular focus on the president’s role by the committee and the press, which in turn caused them to pass over other key details.
▪ They were rushed.
The Iran-Contra investigation decided to complete its work by the end of 1987 in order to keep the affair out of the presidential election of 1988. For this reason, several witnesses, including Lt. Col. Oliver North and Maj. Gen. Richard Secord, testified before the committees knew exactly what they would say. This violated a basic rule of litigation: Never ask a court witness a question to which you don’t know the answer. The wrong answer could get your client convicted.
Later, when Reagan’s national security adviser, John Poindexter, testified that Reagan had not approved crucial aspects of the affair, the committee rushed out its report without having pursued several lines of inquiry. As a result, many details were lost to history.
▪ They torpedoed subsequent prosecutions.
By granting immunity to multiple witnesses, the Iran-Contra committee impaired the Justice Department’s investigation into the scandal. For instance, over the strong objection of the Justice Department, the committee granted immunity to North and Poindexter, making prosecution so complicated that the department was ultimately forced to drop criminal charges against them.
The purpose of congressional investigations is neither to impeach nor protect the president. Rather, it’s to preserve our democracy. This can be done only if Congress is able to follow the intelligence and truly get to the truth. Avoiding these past mistakes is a start.
Jeffrey H. Smith is a former general counsel of the CIA and a former general counsel of the Senate Armed Services Committee.