Analysis: The Trump administration faces multiple threats as it seeks to investigate itself
Trump’s White House must convince Americans of the credibility of an investigation into its own actions while avoiding the damage the investigation can cause.
After six weeks spent scrambling to fend off chaos, the Trump White House has found itself in territory familiar to several past administrations: trying to pursue a sense of normality as it conducts an investigation into itself.
The decision by Atty. Gen. Jeff Sessions to recuse himself from supervising an FBI probe into Russia’s efforts to influence the presidential campaign — and the Trump campaign and administration’s ties to that country — may have settled one thorny issue. But it left a series of others.
The biggest challenge, according to veterans of past administrations of both parties, will be to persuade Americans of the credibility of an investigation into its own activities while avoiding the internal damage that a prolonged investigation can cause for a White House.
“It’s very easy to get an atmosphere that’s a combination of paranoia and the desire to please the boss and panicky fear of what’s going to come out next,” Michael Waldman, a speechwriter for President Clinton during that investigation-marred administration, said of the sentiment inside a White House under siege.
“It can be very debilitating.”
If history holds, Trump and his staff will face two distinct problems. They will have to guard against administration officials becoming more and more fearful about their own futures as they contemplate interviews with the FBI or summonses to appear before congressional committees. Those fears can limit internal cooperation and complicate hiring new staff.
At the same time, the administration will have to work harder to propel policy goals to the forefront in a media environment dominated — to this point — by a series of controversies.
“White Houses act like 8-year-olds playing soccer — everyone runs to the ball,” said Democratic veteran Mickey Kantor, who served as Clinton’s trade representative and secretary of Commerce.
“When you run to the ball, it gets in the way of other work, it disrupts other work,” said Kantor, who said he was not casting judgment on whether Trump or his team had done anything wrong.
Except for President Obama’s, no recent administration has avoided an independent counsel or special prosecutor investigation since they began sprouting in the Watergate era. So far, the Trump administration has signaled it will not exercise the option of bringing in an outsider to serve as a special prosecutor. Instead, it wants to keep the Russia matter under the control of the president’s and Sessions’ underlings in the Department of Justice.
That may mean a more controlled investigation, but it also means the White House itself will be called to answer for every development.
“This isn’t and shouldn’t ever be political, much less civil war,” said John Q. Barrett, who served under independent counsel Lawrence E. Walsh during the 1980s Iran-Contra investigation, which looked into efforts by Reagan administration officials to use proceeds from arms sales to Iran to finance rebels in Nicaragua. (Both the sales and the financing were barred at the time.)
“It should be law enforcement done in a high spotlight, high stakes process,” said Barrett, now a professor of law at St. John’s University in New York City. “There’s always a fever of the moment, and you hope for people on all sides who can sort of not succumb to that.”
For those working for the president whose administration is being investigated, the stakes are also personal. During the Clinton administration, multiple investigations were conducted by independent counsels, not only of Bill and Hillary Clinton but also the administration’s secretaries of Housing and Urban Development and of Agriculture.
The initial look at the Clintons’ pre-presidential investment in an Arkansas development known as Whitewater morphed into a six-year investigation that ultimately covered the suicide of a White House aide and President Clinton’s affair with a young intern, and prompted impeachment proceedings against him.
By the time the probe was formally concluded, weeks before the election of Clinton’s successor, it had been directed by three separate counsels and its cost had ballooned to more than $71 million.
Swept into the swirl were White House staffers who were not targets of the investigation but, in effect, informed bystanders. Documents had to be collected, memories had to be jogged, and lawyers had to be consulted even if only to offer advice about talking to investigators or before a grand jury. Many aides were left with mammoth legal bills, despite an absence of culpability.
In 1999, with official Washington concerned about the cost and partisanship of such investigations, the independent counsel law was allowed to lapse. Instead of an independent counsel appointed by a panel of appellate judges, the new rules allow the attorney general to appoint a special prosecutor, either from the Justice Department or an outside lawyer. The scope, too, is narrowed, to criminal activity.
The most famous appointment under that procedure came in the 2003 case of I. Lewis “Scooter” Libby, the chief of staff to Vice President Dick Cheney who was accused of publicizing the name of a covert CIA officer, Valerie Plame, in retaliation for criticism of the administration by her husband.
Patrick J. Fitzgerald, the U.S. attorney in Chicago, was brought in as the prosecutor and won the conviction of Libby on four felony counts. Libby’s 30-month sentence was later commuted by President George W. Bush.
Fitzgerald had a reputation for independence and was outside the Washington-based Justice hierarchy. (He was selected in large part by his close friend James Comey, then the deputy attorney general and now head of the FBI, one of the agencies looking into Russian election activities.)
Sessions’ recusal in the Russian case places the investigation for now in the hands of Dana Boente, a career prosecutor and the acting deputy attorney general. Before Sessions was sworn into office, Boente briefly served as acting attorney general after Trump fired his predecessor, Sally Yates, for refusing to defend the president’s ban on travel from seven mostly Muslim countries.
The administration has nominated Rod J. Rosenstein, the U.S. attorney in Baltimore, who has a reputation as nonpartisan, to fill the deputy’s job. He would inherit the investigation if he is confirmed.
Veterans of past independent investigations said that, without an arms-length prosecutor, the challenge will be to persuade Americans to trust the outcome. Regardless of the independence and integrity shown by Justice Department attorneys, they said, the perception of independence will be lacking.
“The biggest thing to me is: Do people believe it,” said Boston-based lawyer Kenneth J. Parsigian, who also served on the Iran-Contra team. The problem, as he noted, is that whoever leads the case will still report to Sessions after it is over. The attorney general recused himself because of his role in the Trump campaign, but only after it became known he had met with the Russian ambassador before the election.
“What’s going to satisfy the American people?” Parsigian asked. “If you do an investigation and the answer comes down and 51% of the people don’t believe it, then what was the point?”
President Trump, for one, has not seen the need for an independent investigation. Before Sessions recused himself, Trump said he did not think that step was necessary.
On Friday his deputy press secretary, Sarah Huckabee Sanders, reiterated his view to reporters.
“The big point here is that the president himself knows what his involvement was, and that’s zero,” she said. “And I think he’s the primary person that should be held responsible, and he had no interaction, and I think that’s what the story should be focused on.”
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