Mueller Investigation Will Set a Precedent — Make It a Good One

It’s not yet clear when Special Counsel Robert Mueller will submit his report on the 21-month investigation on Trump’s dealings with Russia to Attorney General William Barr, but progressives are already gearing up for a fight to make the report public. While this battle is important, progressive demands shouldn’t stop there: We must also pay attention to which political institutions are empowered in the wake of the investigation, and focus on how to disrupt wider corrupt systems of power.

Though many view him as a savior, Mueller and his team of top prosecutors are not the apparatus we need if we want to change the systems of money and power that brought us Trump. Furthermore, the current global trend of anti-corruption politics show that such prosecutions can be dangerous for democracy — Brazil being a clear example of this. Fortunately, our own history can serve as a progressive model for avoiding this dynamic while strengthening democracy.

The investigation of Trump, thus far, has mostly been in the hands of unelected institutions within the executive branch. As the Mueller investigation ends, Congress needs to act by taking control and turning whatever Mueller finds into a wide-ranging investigation on the model of the post-Watergate Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities — led by Sen. Frank Church and commonly referred to as the Church Committee. The Church Committee exposed a corrupt system of illegal government activity and in response, created policy “to place intelligence activities within the constitutional scheme for controlling government power.” It’s time to do the same thing for corporate, billionaire and oligarchic power — foreign and domestic.

If ongoing investigations spawned by Mueller remain only with the Department of Justice (DOJ) and various prosecutors’ offices, we run the risk of strengthening an authoritarian dynamic that is not unfamiliar in U.S. history, but is of particular concern today in our age of rising global authoritarianism. The story of the mid-20th century intelligence forces’ rampant lawlessness and how they were exposed and reformed through wide-ranging, deeply researched congressional action show how democratically accountable institutions are necessary to combat executive excess. The modern incarnation of this dynamic gone wrong in a democratic society is playing out today in Brazil, which should serve as a cautionary tale of what can happen when unchecked bureaucracies are able to obtain plenary political power. The Mueller investigation itself is of less concern than the precedent it will set if Congress fails to take control. The Church Committee took the mantle from the electorally focused Watergate investigation and built a systemic reformation of executive power, making it clear that political power must ultimately rest in the hands of the people.

Process Matters

Mueller appears to have run a disciplined, narrowly focused textbook operation, but a criminal prosecution is exactly the wrong process if we hope to achieve progressive change. The way prosecutorial bureaucracies are structured and the ways they interact with and understand the world make them good at the narrow set of tasks they are charged with (arrests and convictions), while also making them bad at understanding, diagnosing, or changing broader social and economic contexts. A prosecution is primarily designed to punish individuals and should not be expected to change the broader contexts that shape individual behavior.

Criminal law enforcement can be seen as the domestic equivalent of war — the point where all other forms of public policy have failed and force is the only option. The organizations tasked with fighting our various domestic wars share many of the attributes of military organizations. Law enforcement institutions rely on internal discipline and hierarchy, secrecy (e.g. grand juries, surveillance and anonymous tips) and coercion (e.g. heavy sentencing, SWAT raids, cooperating witnesses) to achieve their goals. These features are perhaps necessary for the efficient accomplishment of what are often difficult, focused missions, but are nonetheless antithetical to the process of deliberative, democratic policy making.

As opposed to a process of last resort (prosecution), democratic policy making should aim to develop a broad understanding of systems, rather than individuals, and create interventions that foster systemic change, openly, and with the least amount of harm possible. Rather than drilling down on individual guilt and individual behavior, policy makers should aim to develop an understanding of organizations and networks of power with the aim of uprooting or changing them to better serve the general welfare, while also educating the public on how such systems operate. This is exactly what happened in the mid-1970s, prompted by the investigation of the Watergate break-in, but going much further.

The Watergate scandal started with the exposure of relatively low-level dirty campaign activity by the Nixon election campaign, but eventually led to wide-ranging investigations into decades of executive branch illegality whose historical significance are at least on par with Nixon’s removal from office. The Church Committee produced the most powerful legislative checks on executive power in modern history. With a massive staff, the committee held dozens of meetings and hearings, and interviewed around 800 people. The committee ultimately produced a series of reports that are some of the most detailed historical documents ever produced by Congress, and which provide deep insight into the risk to democracy posed by law enforcement, intelligence and military forces when they are allowed to operate in secret. The FBI’s disgraceful efforts to undermine the civil rights movements of that era are perhaps the most infamous and clearest examples of this dynamic.

J. Edgar Hoover and the FBI forces he commanded provide a frightening example of how unchecked bureaucratic power undermines justice, progress and democracy. Best known for COINTELPRO — his secret, years-long, racist and paranoid operation to destroy Rev. Martin Luther King Jr. and the civil rights movement itself — Hoover spent nearly half a century illegally building secret files on all perceived enemies. Hoover kept extensive files in order to institutionally blackmail elected leaders, presidents and thousands of others (we’ll never know the full extent of his criminality because his secret files were ordered to be burned upon his death). Hoover’s FBI not only infiltrated and disrupted civil rights, antiwar and leftist organizations, but in 1969, went so far as to collaborate with Chicago police to assassinate Black Panther leader Fred Hampton. Hoover instilled such fear in other institutions of government that only death could remove him from office after 48 years as FBI director. COINTELPRO is just one example of the many wrongdoings exposed by the Church Committee — other reports include “Alleged Assassination Plots Involving Foreign Leaders,” and “The National Security Agency and Fourth Amendment Rights” among others. In addition to significant reform and the historical record it created, the Church Committee’s legacy is the precedent that deeply entrenched systems of power can be challenged, exposed, and held to account by Congress.

The Coup in Brazil: Wrong Way to Do It

The “anti-corruption” coup that took place in Brazil is a modern example of how unaccountable deference to law enforcement can destroy democracy and should serve as a warning. In Brazil, the sprawling Lava Jato (Operation Car Wash) anti-corruption campaign and Sérgio Moro, an unelected judge (who also prosecuted the cases he ruled on) have set the stage for the removal of President Dilma Rousseff for a non-crime, and jailed the leading presidential candidate, Luiz Inácio Lula da Silva (“Lula”) in the midst of a presidential campaign for “indeterminate acts.” The tactics and extralegal prerogatives of Moro, though less explicitly violent, are reminiscent of Hoover: No political leader can go against him, and he will use illegal tactics to destroy his opposition. Moro has gone so far as to wiretap Lula’s legal defense team while in the midst of prosecuting him. Jair Bolsonaro, the neo-fascist who, with Lula disqualified, won the presidential election, ended up giving Moro a top cabinet position as minister of justice. Now, after the return of democracy in the 1980s, Brazil appears to be headed backward toward military rule.

Luckily, Mueller has not become a Hoover or a Moro, but we should not take comfort in the luck of the draw — James Comey, another former FBI director, showed how strong the incentives to exceed one’s role can be. Robert Mueller has taken care to stick closely to his narrow mandate and has thus far not turned the Trump investigation into Lava Jato, but Congress should not continue to subcontract our democracy to a prosecutor. Congress is the only governmental body that can take on the president while maintaining the balance of power necessary for democratic accountability.

The case of Moro in Brazil shows us what can happen when an executive bureaucracy gains enough power to take out a president; the Church Committee shows us what a democratic process can achieve. Congress has subpoena power based on its legislative function; it should therefore demand the details of the Mueller probe and use them to look at the myriad areas touched on by the investigation where it could take significant legislative action. From what we know so far, there are plenty.

Foundations of Trump’s Rise to Power

If there are two worlds that birthed the Trump presidency, they are real estate and TV.

New York real estate is known as a global piggy bank for the world’s gangsters, oligarchs and kleptocrats. The U.S. has become one of the epicenters of dirty money because of our (relative) economic stability, and our extreme accommodation for corporations and the wealthy. States like Delaware and Nevada will allow just about anyone to set up anonymous shell companies. These companies are then used to buy all kinds of assets, luxury real estate being a favorite. The real estate industry has incredible power and has fought hard to maintain an exceptional status that feeds corruption. For instance, real estate lobbyists were able to get 15 years of “temporary” exemptions from the PATRIOT Act’s disclosure requirements — something big banks couldn’t even do. Not only do the lax real estate and corporation laws allow for money laundering and tax evasion, luxury real estate development puts upward pressure on rents and properties, making major cities like New York, Vancouver and London unaffordable. Furthermore, the same type of loopholes that allow international gangsters to hide their money in the U.S. allows real estate developers to hide their donations in state and local elections. A determined congressional effort aimed at exposing and drastically changing this system would not only reduce the kinds financial crime that brought Trump to power, but would help make housing more affordable for regular people.

Trumps pre-existing celebrity gave him an outsized advantage in the election. Congress can’t give every potential candidate a reality TV show or stop major news outlets from giving Trump (or other billionaires like Howard Schultz) billions in free airtime, but it could lower the advantage of billionaires by requiring broadcasters, social media platforms and other media distributors to provide free advertisements to candidates during elections season.

Candidates for public office hand over huge amounts of money to private companies, yet these companies would not exist and could not operate without publicly provided airwaves, limited liability, intellectual property protections, right of way, licensing, anti-trust exemptions, and other infrastructure (not to mention basic research). Hearings and legislation aimed at exposing and ending the rampant profiteering that the private sector makes off of what should be a public good would be a fitting legacy for the reality TV star billionaire president.

Beyond real estate and media, the Mueller investigation has given glimpses into systemic problems in voting systems security and cyber systems. These are issue areas that need more public engagement and policy making. The Mueller findings, coupled with vigorous hearings, research and recommendations by congressional committees could turn Trump’s bad acts into longstanding systemic change.

A Committee Report on Voting Machine Security could bring much-needed development to a neglected component of our democratic infrastructure. We have a disorganized, complex, parochial electoral system where local officials control almost every aspect of the physical voting process. State and local officials make purchasing and implementation decisions based on practical as well as political factors, and private companies are contracted to sell electronic voting machines with terrible security. Congressional research and recommendations coupled with programs that fund design, implementation, auditing and purchasing could help build voting systems that would be far less vulnerable to tampering. Making such systems free and open-source would not only provide the requisite security, but would also make them a global resource allowing this technology to be used by any county, state, or nation that wanted it.

Trump’s election has brought significant attention to the issue of cyber espionage without much attention paid to anything that happened before the 2016 U.S. elections or anything that might be done to fix the problem. Beyond the Russian focused narrative of the 2016 election, it is worth noting that the U.S. in 2009 actually conducted the first major cyber attack aimed at a foreign country’s infrastructure. U.S. cyber policy thus far has largely depended on American technical superiority while eschewing attempts to create internationally recognized ground rules for cyberspace — the assumption being that international regulation might weaken the U.S. position relative to other nations. This is short-term thinking in an increasingly multipolar world is creating a cyber arms-race — one we might not be well prepared for. Relying on 20th-century American exceptionalism will likely fail us more going forward, whereas serious congressional inquiry and policy making could help lay the foundation for a more adequately regulated internet of the future.

These are just a few issue areas that Congress might delve into, but what is most important is that Congress takes over as the primary political force opposing Trump through public hearings, research and reporting. Strong congressional action that engages the public is necessary to disrupt the systems that created the Trump presidency and is also the best defense against the emergence of a Brazilian-style weaponized bureaucracy where opposition parties cloak their political battles in judicial robes.