Richard Ben-Veniste, left, and Andrew Frey of Mayer Brown ()
In a rare glimpse of what it might be like to be their clients, Mayer Brown partners Richard Ben-Veniste and Andrew Frey offered some words of wisdom for lawmakers Tuesday on their investigation into Russian interference in the 2016 election.
Ben-Veniste, based in Washington, D.C., and Frey, of the firm’s New York office, spoke at a hearing before the Senate Judiciary Committee’s Subcommittee on Crime and Terrorism about lessons learned in their experiences working on congressional investigations when there was also an ongoing criminal investigation. The lawyers were advising the lawmakers on working with FBI Special Counsel Robert Mueller III as he conducts his concurrent investigation on Russian interference and possible collusion with President Donald Trump’s campaign.
Both attorneys are no strangers to special prosecutors and congressional investigations—Ben-Veniste was a lead prosecutor on the Watergate Special Prosecution Force and chief counsel of the Senate Whitewater Committee and Frey was assistant to the solicitor general under President Richard Nixon and then deputy solicitor general from 1973 to 1986. The lawyers testified alongside Danielle Brian, executive director of the Project on Government Oversight, and University of Baltimore law professor Charles Tiefer.
Peppered with questions about immunity, subpoenas and executive privilege, Frey and Ben-Veniste encouraged the lawmakers to be wary of inefficiencies when coordinating with Mueller, but not to shy away from conducting a robust investigation.
“I would suggest, most respectfully, that you not emulate kiddie soccer, where everybody’s rushing to the ball and all the rules are put aside and all of your discipline put aside,” Ben-Veniste told the committee.
He stressed that the committee should meet and collaborate with Mueller, but that it should also have its priorities set before doing so, especially given the “internecine struggles for turf” among lawmakers. In addition to the Senate Judiciary subcommittee, the House and Senate Intelligence Committees are conducting investigations, as well as the House Oversight Committee.
“The worst thing that can happen is if there are different voices and you’re not marching in unison,” Ben-Veniste said. “On the question of investigative priorities, I think you need to sit down, get your act together, and then to meet with Mueller and to determine what areas of collaboration and cooperation you can hammer out.”
Sen. Richard Blumenthal, D-Connecticut, asked the lawyers how to go about calling witnesses and whether to ask permission from Mueller to grant them immunity. It’s a tricky situation for the lawmakers, because if a witness is granted immunity by Congress, any testimony given cannot be used against him or her in a criminal prosecution. Frey said the committee should certainly discuss the issue with Mueller before making decisions, but shouldn’t hesitate to call witnesses as it needs to.
“I don’t think you should assume that your investigation is subordinate to the special counsel’s investigation,” Frey said. “So I wouldn’t have a general rule that you’re not going to grant immunity unless the special counsel authorizes you to do it.”
Frey added that there were “devices” the lawmakers could use when working with Mueller to enable them to gather immunized testimony without “destroying prosecutorial potential,” such as limiting questions asked under immunity to certain topics that don’t overlap with any criminal case Mueller may be building.
There was also a moment of tension between the lawyers and Sen. John Kennedy, R-Louisiana, who asked why an executive branch employee would willingly testify before Congress if there was an ongoing criminal investigation in which they could be implicated.
Kennedy said that even if a witness was innocent, it was unlikely that a lawyer would advise them to go before Congress if a matter in which they were involved was under FBI investigation.
“Why wouldn’t everybody refuse to cooperate with the United States Congress?” Ben-Veniste asked the lawmaker. “Is that the question? With or without the threat of going to jail, one would hope that citizens of this country respect the Congress of the United States to the extent of responding to legitimate questions that they may be asked.”
Frey said that whether someone would testify would depend on whether executive privilege had been invoked, which would then bar a government employee from giving testimony.
He and Ben-Veniste added that there are often cases where witnesses voluntarily testify if it might help their case.
“The reality is that many people who are peripherally involved in criminal activity do cooperate because they find it to their advantage to do so,” Frey said.
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