In the Nunes Affair, Don’t Lose Sight of the Unanswered Questions

Andrew C. McCarthy:

Let us stipulate that it would be difficult for House Intelligence Committee chairman Devin Nunes (R., Calif.) and the Trump White House to have handled a critical intelligence matter any worse.

Still, the questions Nunes has raised are more important than the fact that he shot himself in the foot while pursuing the answers.

The chairman says he was invited by an unidentified intelligence official to review classified documents on the White House grounds — at the Old Executive Office Building, it appears, where the National Security Council has secure facilities for that purpose. These documents purportedly show that communications from Trump transition officials, and perhaps Trump himself, were intercepted during intelligence-agency monitoring of foreign powers; and Nunes says the monitoring in question appears unrelated to Russia’s meddling in the U.S. election.

Nunes reports that the documents he was shown suggest that the Obama administration may have been using its foreign-intelligence powers to shadow the incoming Trump team. Though the communications in question were lawfully intercepted, Nunes suggests that the identities of Trump officials should have been “masked” (i.e., concealed) under standard minimization rules that guide the dissemination of classified foreign intelligence throughout the “community” of U.S. intelligence agencies. Instead, the identities of the Trump officials were revealed and widely transmitted to people with no apparent need to know about the officials’ communications — some of which, in Nunes’s description, had “little or no apparent foreign-intelligence value.”

Nunes’s account cannot be verified because the documents he reviewed have not been disclosed, nor reviewed by anyone else who is talking. Meanwhile, rather than first sharing what he learned with members of the important committee he chairs, Nunes went to the White House to brief President Trump.

This is bizarre for two reasons. First, the classified information Nunes reviewed belongs to the executive branch, which the president leads. Trump does not need to be briefed by a member of Congress; he can direct the appropriate intelligence officials to brief him — and could then declassify and publicize any information he believes the public should have (redacting any information that could compromise critical intelligence secrets, methods and sources). Second, Nunes, who served on the Trump transition team, leads a committee responsible for getting to the bottom of both alleged Russian interference in the 2016 election and the executive branch’s potential abuse of its foreign-intelligence collection power. By opening himself up to the charge that his first loyalty is to the White House rather than to his committee’s investigation, Nunes damages both his own credibility and the perception that his committee can conduct a reliable investigation.

That said, Democratic calls for Nunes’s recusal, led by the committee’s notoriously partisan ranking member, Adam Schiff (D., Calif.), are as meritless as they are transparently political. A congressional investigation is not a criminal trial before an impartial jury; it is an inquiry by a bipartisan committee of politicians who have patent party loyalties, and who engage in obvious partisan gamesmanship. If Schiff’s point is that a congressional investigation is invalid unless those conducting it are objective and non-partisan, there is not a single Democrat or Republican who could sit on a single committee — he, least of all.

We can always hope that at least some members of Congress will rise to the call of statesmanship, if just for the sake of their own reputations. But we don’t rely on such hopes; we rely on the clash of partisans. Congressional committees are bipartisan precisely because their members are expected to sympathize with their own side of the conflict. The idea is that we get at the truth because each side will make its best case, challenging the other’s assertions. Nunes is to be faulted because he has gratuitously given Democrats a leg up in that debate. But he is no more disqualified to participate in the investigation than is Schiff, who has already publicly woven an extravagant theory of collusion between Trump associates and Russia — exactly what a credible, impartial investigator does not do before the investigation is completed.

While Nunes clearly mishandled matters after obtaining information from what he says is more than one source, his pursuit of that information through these intelligence sources is understandable — perhaps even necessary.

The chairman claims that the FBI is not being cooperative with the Intelligence Committee’s investigation of the handling of classified information involving Michael Flynn, Trump’s former national-security adviser. Flynn resigned after it emerged that he had given Trump officials, including Vice President Pence, an incomplete account of his post-election communications with Russian ambassador Sergei Kislyak — to wit, Flynn did not inform them that he discussed the topic of just-imposed Obama administration sanctions against Russia. The FBI knew that the topic had come up because it had a recording of the relevant telephone conversation — apparently because it was monitoring Kislyak’s calls.

It is beyond cavil that the FBI’s surveillance of Kislyak was proper. He is an agent of a foreign power, and thus a proper target of court-authorized eavesdropping under the Foreign Intelligence Surveillance Act. And while some have questioned the propriety of the “unmasking” of Flynn’s identity — probably by the FBI — in disseminating classified reporting about the conversation to other intelligence agencies, I have explained that this, too, was justified. Minimization rules permit unmasking of American identities when it is necessary to understand the intelligence value of a communication. Plainly, it was relevant that the person the Russian ambassador was speaking with, and apparently seeking accommodations from, was the incoming president’s national-security adviser.

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