Can Congress and Mueller get along in the Trump-Russia probe?

Any prosecutor or former prosecutor, if not now working in the Congress, would want congressional investigations into possible criminality by an administration to simply be shut down.

Prosecutors should be allowed to do what prosecutors do, unobstructed. Particularly when they are as qualified and above reproach as Robert Mueller, who ably served as FBI director under both a Republican and a Democrat president.

Prosecutors, better than most, know the danger — a criminal investigation may be compromised when a congressional hearing gets in the way. The lesson of the Oliver North case is pellucid; it’s downright luminous. 

{mosads}For those who may not recall, Congress gave North immunity in order to obtain his (public) testimony. That testimony could thus not be used — or used to shape, directly or indirectly in any way — the prosecution’s case against North at trial. 

As a result, North’s conviction was reversed and all charges against him were dismissed.

Now, most of us aren’t (former) prosecutors, and most of us don’t look at life through the narrow cylinder of what’s the most effective way to prosecute those whose questionable conduct potentially straddles both judicial and legislative justice systems.

And while there are several differences between what a prosecutor’s investigation looks like and what Congress does, the most compelling issue for the public is this: special prosecutors do their work quietly and sometimes very slowly. 

There are no televised hearings, no speeches from elected representatives, no media bytes on the internet; in short, the citizenry is not informed. 

Let’s face it, most of us who fear that administration officials may have violated the law or engaged in inappropriate executive conduct don’t really want a special counsel to do his job in secrecy, particularly as the job might take a year or more and end in an anticlimactic conclusion that no “prosecutable crime” has been committed, with no further explanation whatsoever. 

Many of us, even hard line, pro-prosecution types, believe there is an important role for Congress, that the Constitution gave Congress the power and authority to execute it by holding hearings to get to the bottom of those scandals that most trouble the electorate. 

Is there a scandal more worthy of congressional attention than one that questions whether an administration, its representatives, or those who helped elect the administration engaged in improper conduct with a longtime enemy of the United States?

Must the Congress sit still in the face of the news swirling around the White House and forgo its right and duty to get to the bottom of what may be lurking, simply because granting immunity to someone who may have committed a crime but can point to higher ups (or the higher up) might enable that person to “walk” free after taking that immunity bath?

To be sure, a congressional investigation is a “political” proceeding instituted by legislators who are answerable to those who elected them (and who may or may not reelect them). They are politicians. 

And for now at least, unlike Watergate, Congress seems divided along party lines (with some notable exceptions) so that we, the public, may have a hard time trusting the bona fides of the decision makers, particularly in the House of Representatives given the conduct of the Republican chairman of the House Intelligence Committee. 

In our current partisan world, can we really trust that one group won’t demand immunity for a witness for, let’s call them, the “wrong” reasons?

Today, at least, there are no senators Sam Ervin and Howard Baker, being a Democrat and a Republican, respectively, sitting side by side during the Watergate hearings asking questions, as Baker did: “What did the president know, and when did he know it?” 

Nonetheless, the Founders appreciated the necessary tension and the legislature’s constitutional role in dealing with “high crimes and misdemeanors” that may have been committed by the executive branch, whether or not they are actually prosecutable offenses for which a conviction would likely be obtainable. 

We are a long way from impeachment proceedings, and it may be that we should never get there. Indeed, we are a long way from even deciding whether there are impeachable offenses. 

Still, Congress simply won’t be able to determine if they exist without critical “turnaround” witnesses, who are in the know and who come to the congressional microphone with dirt on their hands.  

So what do we do?

We allow the processes to work side by side. We urge the special counsel and Congress to work on parallel tracks, trusting that Congress will use wisdom and judgment and listen to the prosecutor when he asks for forbearance, which may be necessary when it comes to a grant of immunity or when Congress is asked to stand down so as not to harm an impending prosecutorial step.

Likewise, special counsel needs to exercise restraint when Congress is on the verge of important action. And, significantly, we should not criticize that we — the public — or our “surrogates” who publish on a 24/7 cycle, aren’t told enough in real time when discreet delays may very well be what is necessary to enable truth to ultimately prevail.

By the way, the impending public testimony of FBI Director James Comey is the first step toward valuable parallel proceedings in the public interest. 

While that testimony by this “FBI man” will not implicate immunity issues, it may be a first test of whether Congress, notwithstanding it being a political body, shows itself willing to put aside its partisan political instincts in the name of a quest for truth. 

If Comey is allowed to answer questions about his crucial interactions with the president without partisan skirmishing and innuendo on either side of the aisle, we may arrive at that place where the public may have more confidence than it now does in Congress carrying out its role with integrity, and a healthy respect for its constitutional mandate. I, for one — and I suspect a lot of Americans — will have more respect for Congress and its hearing, if it can pass this test.

The decision to seek Comey’s public testimony is a congressional act that is surely on the right track. But as Will Rogers famously told us: “Even if you’re on the right track, you’ll get run over if you just sit there.” 

Joel Cohen practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. He is the author of “Broken Scales: Reflections on Injustice” and regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications. Dale J. Degenshein of Stroock assisted in preparing this article and contributed to “Broken Scales.”

The views expressed by contributors are their own and are not the views of The Hill.