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Mueller’s appointment complicates Congress’ Russia investigations

Robert Mueller’s appointment as a special counsel has quickly complicated Congress’ investigations into Russia’s election meddling. And the former FBI director has done nothing so far to provide clarity.

The leaders of the House and Senate Intelligence Committees are anxious to speak with Mueller, who’s now overseeing the FBI’s parallel Russia probe, to ensure their congressional investigations don’t interfere. But Mueller has yet to agree to meet with congressional investigators, according to the panels’ leaders.

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And if Congress’ investigation crumbles, the public may never find out the depths of Russian intrusion in the 2016 election, as a special counsel is largely focused on whether anyone broke the law.

Sen. Lindsey Graham, who chairs a Judiciary subcommittee with oversight over the FBI, is simply putting the brakes on his investigation — and is urging his colleagues on the intelligence panels to proceed with caution for fear of disrupting what has become a full-fledged criminal investigation into allegations of collusion between the Trump campaign and Moscow.

“One of the realities of having somebody looking into potential criminal charges is that you’ve got to be careful what you do in Congress,” said Graham, a former Air Force lawyer. He said he plans to hold a hearing with experts on how Congress should move forward with its investigations without getting in Mueller’s way.

“I need to talk to people who have done this before and make sure we don’t interfere with an investigation,” Graham said. “And we need sort of an agreement with Mueller as to how we interact. When we plan to do something, we want to make sure we don’t step into his lane.”

The leaders of the House and Senate Intelligence Committees, meanwhile, say their investigations are moving forward as planned. Members of the intelligence panels pointed to past instances in which Congress and the FBI ran parallel investigations — including Watergate.

But they noted that they would need to set up “deconfliction” agreements to ensure they don’t step on Mueller’s toes, which might not be easy.

Virginia Sen. Mark Warner, the top Democrat on the Intelligence Committee, said staffers have been in touch with Mueller and that he and Senate Intelligence Chairman Richard Burr (R-N.C.) are trying to set up a meeting with him “as soon as possible.”

“We’ve reached out to Bob Mueller to have a conversation about deconfliction, but that date has not been set,” added Burr.

Rep. Adam Schiff of California, the top Democrat on the House Intelligence panel, also said that he had not met yet with Mueller but hopes to speak with him soon.

“We’ll certainly want to establish a process where we can make sure that what we’re doing isn’t stepping on his efforts and vice versa,” Schiff said. “It’ll be particularly important in the context of any request for immunity, but there may be other areas in which we’ll need to coordinate our efforts.”

Burr and Warner last week underscored their intent to move forward by issuing two new subpoenas to businesses owned by Michael Flynn, Trump’s former national security adviser who was ousted over his misleading statements about contacts with Russia’s ambassador. The House Intelligence panel is also planning to subpoena Flynn — and members of the committee have hinted that subpoenas of other witnesses could be coming soon.

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But there are already signs that Mueller’s appointment might be making things harder for congressional investigators. On Thursday, the FBI declined a congressional request for memos by former FBI Director James Comey detailing his interactions with Trump. The reason: FBI officials say they need to consult with Mueller first.

Burr and Warner are planning to hold a hearing with Comey, who was fired earlier this month — a hearing Graham argues could damage the criminal investigation.

“Comey is a witness that Mueller would be interested in, and we’d all like to hear from him. You’d like to hear from him. I’d like to hear from him,” Graham said. “But that’s probably a classic example of where us calling him could really probably hurt the investigation.”

Andrew Herman, a lawyer and expert on congressional investigations who has represented members of Congress facing ethics probes, said he agreed with Graham’s take. He explained that Comey’s public testimony before the intelligence panel could reveal information that Mueller would rather be kept under wraps while the FBI probe is ongoing.

“The special counsel is able to keep his interviews confidential, whereas anything Comey says in a hearing is going to be public,” Herman said. “It may affect the testimony of other witnesses who Mueller is going to be talking to.”

At least one witness, Flynn, has requested immunity in order to testify — which the intelligence committees have shown no interest in accommodating.

Rep. Jim Himes of Connecticut, the No. 2 Democrat on the House panel, said it is important for lawmakers to continue their investigations, noting that Congress has a “slightly different” mission than the FBI. He said the FBI’s job is to investigate whether crimes were committed, not informing the public about the larger issues at hand.

MENLO PARK, CA - FEBRUARY 10: California Attorney General Kamala Harris delivers a keynote address during a Safer Internet Day event at Facebook headquarters on February 10, 2015 in Menlo Park, California. Harris delivered the keynote speech at the event, designed to promote safe, effective use of the internet and mobile technology. Safer Internet Day is celebrated annually in more than 100 countries on the the second Tuesday in February. (Photo by Justin Sullivan/Getty Images)

“We’re not there to discover evidence of and to prosecute a crime,” Himes said. “We’re there to really understand all the forces and aspects of the Russian hack. The scary scenario is more a scenario where the FBI does what they do, and we don’t get the benefit of what they have learned just because they decide to prosecute this individual but not that individual.”

But Herman, the lawyer who has represented lawmakers under ethics investigations, said there are “a lot of potential avenues for problems.”

He said that as a defense lawyer, he would be “very cautious” about allowing clients to submit to multiple interviews where there’s the potential they could contradict themselves. He said he could envision a scenario in which witnesses who’ve already spoken to congressional investigators refuse to also talk to the FBI, instead directing federal investigators to their previous testimonies.

“Obviously the things that Mueller wants to know about could be completely different from the things that the Intelligence Committee wants to know about,” Herman said. “So that’s a significant problem both for the investigators and for the witnesses.

“If I want someone doing a thorough investigation,” he added, “I want the experienced FBI agents and prosecutors that are going to be on Bob Mueller’s team.”

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