In the torrent of comments on the report submitted by Special Counsel Robert Mueller, here are mine from Law 360:
Jack Sharman, who served as special counsel on the House Financial Services Committee during the Whitewater investigation and is now a partner at Lightfoot Franklin & White LLC, agreed that those findings in the report raise serious questions for Congress going forward.
“There may be misconduct here, not criminal misconduct, and it may be up to the political branch to resolve that, and not in the hands of an Article II prosecutor,” Sharman said.
Sharman said there is typically “a little bit of a shadow dance that takes place” when members of Congress seek such sensitive information. A congressional committee may file a subpoena or even a lawsuit seeking documents that the executive wants to protect for various reasons, Sharman said, but later a deal will be worked out by both sides as they worry about an adverse court ruling.
“There are these tools and procedures that are used in other contexts that will allow basically everybody to declare their victory and go home,” Sharman said, pointing to procedures that allow the House and Senate Intelligence Committees to review classified information.
Democrats may also benefit by building at least some support among Republicans before charging ahead to seek the report’s deepest secrets, Sharman said.
“History tends to show that congressional power and persuasiveness is at its highest when there is at least a bipartisan tinge to an oversight hearing or investigation,” he said.