Congress should protect evidence gathered by Mueller in Russia probe, experts warn

Erin Kelly | USA TODAY

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WASHINGTON — When former president Richard Nixon abruptly fired Watergate special prosecutor Archibald Cox, assistant prosecutor Nick Akerman stuffed some of the evidence against Nixon in his clothes to prevent it from being destroyed.

"I hate to tell you exactly where I put it," laughed Akerman, who is now a partner for the international law firm Dorsey & Whitney.

With the continuing possibility that President Trump could fire special counsel Robert Mueller to thwart the Russia investigation, there is danger once again that key documents could be destroyed, veterans of special investigations warn. They are urging Congress to act quickly to help save crucial evidence before Mueller's team of prosecutors finds itself in the same predicament Akerman faced in 1973.

"Before that worst-case scenario occurs, this is the best time for the congressional committees to make sure that all of Mueller's documents, transcripts and other material goes to them if he is fired," said former senator Bob Graham, D-Fla., past chairman of the Senate Intelligence Committee and co-chairman of a joint Senate-House investigation into intelligence community activities before and after the 9/11 terrorist attacks.

There are three congressional committees — the Senate and House Intelligence committees and the Senate Judiciary Committee — investigating Russia's interference in last year's presidential election and possible collusion between the Trump campaign and Russian officials. Mueller is conducting a separate, criminal probe.

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Leaders of any one of those committees could issue a subpoena at any time saying they want every document that Mueller's investigation has produced, said Andrew Wright, an associate professor at Savannah Law School in Georgia, former staff director of the House Oversight and Government Reform Committee, and former associate counsel to ex-president Barack Obama.

The Department of Justice would undoubtedly raise objections to the immediate enforcement of the subpoena because of Mueller's ongoing investigation, but the committee could then suspend its enforcement until Mueller's probe is done.

"The more they (congressional committees) express the will now, the more the executive branch is on notice not to destroy the documents," Wright said. Destroying them could lead to obstruction-of-justice charges, he said.

For now, Congress appears to be focusing more on protecting Mueller himself.

Not reassured by Trump's statement in August that he doesn't plan to fire Mueller, senators have introduced two bipartisan bills to make it more difficult for the president to dismiss the special counsel.

One bill, sponsored by Sens. Thom Tillis, R-N.C., and Chris Coons, D-Del., would allow a special counsel who is fired to challenge that dismissal in federal court. A panel of judges would have to review the challenge within 14 days.

Another bill, by Sens. Lindsey Graham, R-S.C., and Cory Booker, D-N.J., would require a judicial review to remove a special counsel from office. The attorney general would have to petition a federal court and establish that there was a "good cause" for the firing, such as misconduct, incapacity or conflict of interest.

The Senate Judiciary Committee has scheduled a hearing on the bills for Tuesday.

Akerman said he would like to see Congress go further by passing legislation that would require a special counsel to report directly to a three-judge panel rather than to an attorney general, protecting the counsel from interference or retaliation by a hostile president.

The problem with legislative solutions is they take time and there is no guarantee they will pass a divided Congress or be signed into law by Trump, Wright said.

"The subpoena is probably the right tool at this point," he said.

Graham said the congressional committees involved in the Russia probe need to help themselves now by putting protocols in place to preserve Mueller's evidence and ensure they have access to it if he's gone.

"If Mueller is dispatched, it's all going to fall on their heads," the retired senator said. "They would essentially have to conduct a congressional criminal investigation."

Trump, who has blasted Mueller's investigation as "a witch hunt," may feel the need to go after the special counsel amid reports that Mueller could be trying to make a deal with former Trump campaign chairman Paul Manafort to provide the prosecution with evidence against the president, Akerman said.

"The vise is starting to get closer and closer to Trump," he said. "I think there is danger that he lashes out and fires Mueller."