National Security

The Frivolous Case Against the House Intelligence Chairman

Devin Nunes raised a serious issue. His downfall should not distract from it.

Devin Nunes raised a serious issue. His downfall should not distract from it.

Photographer: Chip Somodevilla/Getty Images

Well it looks like the media won't have Representative Devin Nunes to kick around anymore. This is the latest twist in the dueling investigations around alleged Russian ties to President Donald Trump's associates and the Obama administration's alleged politicization of the surveillance state.  

Nunes has temporarily recused himself from the House Intelligence Committee investigation into Russia's influence operation against the 2016 elections. He will remain that committee's chairman. The Democrats appear to have collected another trophy.

Let's start off by saying that Nunes compromised the integrity of his investigation when he pretended to be informing the president about intelligence reports sent to the Obama White House on the Trump transition. We know it was a pretense because these reports, and the fact that Obama's national security adviser, Susan Rice, had made dozens of requests to learn the redacted identities of Trump transition officials contained within them, were discovered by Trump's own White House. 

That said, the information the White House showed Nunes was serious enough that the ranking Democrats on the House and Senate Intelligence Committees have now agreed for their respective panels to examine whether Rice improperly requested the unmasking of the Trump transition team members. In another era, this kind of thing was called oversight. 

This brings us the charges brought to Office of Government Ethics that spurred the House Ethics Committee to launch its probe. The committee is investigating whether Nunes violated rules prohibiting the disclosure of classified information when he held press conferences to discuss the reports he had seen. What is the violation? It's the fact that Nunes said publicly that he had seen summaries of raw intelligence reports that he said inappropriately contained details about the Trump transition and were not related to Russia. While the chairman never acknowledged that the sources of his information were NSA intercepts, any mention of any information collected under the Foreign Intelligence Surveillance Act is technically classified.

This sounds worse than it is. This complaint, brought by a handful of lawyers who have been harsh critics of Trump and by progressive activists like MoveOn.org, is a ruse, meant to distract from the bigger question of how the Obama White House was receiving raw intelligence reports on the activities of Trump and his advisers after the election.  

The infraction, if it was one, was not serious. Nunes did not disclose the targets of the surveillance or any details about how the information was collected. There is rarely a day that goes by in Washington when someone in the media is not reporting on classified information. It's a part of the ecosystem. In most cases these leaks are considered to be the cost of doing business and a way for the press and Congress to hold the national security state accountable.

That is not to say there are not leaks that are really harmful. One example of such a leak was the disclosure that Trump adviser Michael Flynn discussed sanctions with the Russian ambassador in a series of phone calls at the end of December. As I've written, that leak represented a breach of trust between the government's eavesdroppers and its citizens. It's inevitable that U.S. citizens will be swept up in government surveillance, but we should be able to trust the government not to deploy this information to influence our politics.

One might think that Democrats cheering the investigation into Nunes would be equally horrified by the Flynn leak. They're not. Representative Adam Schiff, the ranking Democrat on the House Intelligence Committee, said last month at Brookings that he is more worried about mass disclosures like those made by former NSA contractor Edward Snowden than he is about the Flynn leak.

Speaking at the Brookings Institution last month, Schiff said: "You have the leaks that are the most damaging to the country, and I put in that category leaks like the Snowden leaks." He went on to say: "And then you have leaks that expose malfeasance or illegality. Now, I put that kind of leak, I put the Flynn leak in that category. And what was most disturbing to me, frankly, about that was: here you had a situation where the president is informed that his national security adviser – OK, not the postmaster general, who I'm sure is very important – but the national security adviser of the United States of America has lied to the vice president, and probably others, being charitable, probably others, lied to the vice president about -- well, about a conversation with the Russians over sanctions imposed over hacking in the election to help the president."

Think about that. It's true that some of the material Snowden provided journalists was genuinely harmful to national security. One example is when he disclosed the specific computers in China that the NSA was hacking. One could argue the Washington Post's story on the intelligence community's black budget, which told adversaries where the U.S. was deploying its intelligence collection resources, was also a major blow. But Snowden also informed the U.S. public about a secret interpretation of the Patriot Act that allowed the NSA to collect and store the phone records of U.S. citizens. That leak spurred important reforms and greater oversight of government surveillance.

Now let's examine the Flynn leak. It's worth noting that in Flynn's last public comments when he resigned in February, he denied that he misled the vice president. He claims that sanctions were not really discussed in detail in the phone call with the Russian ambassador. But assuming the charges are true, Flynn would hardly be the first national security adviser not to be straight with his colleagues. What's more, that an incoming national security adviser would be in touch with the Russian ambassador is normal. It's only a scandal if it turns out that Trump associates really did collude with Russia's influence campaign against the election.

Since Flynn's resignation, we've learned that he did not register with the Foreign Agents Registration Act for contracts his firm had with a Turkish businessman. Instead he registered under the more lax Lobbying Disclosure Act. That is a serious issue, as is Flynn's decision to take money for a speech at Russia's propaganda network, RT. But those were not why Flynn resigned. He resigned because of the leak. And that leak of his monitored conversations served a partisan agenda more than a public one.

It's unclear what the House and Senate investigations into Rice's unmasking activities about the Trump transition will turn up. Whether Rice's decisions look warranted will depend a lot on what the FBI learns about the Trump campaign's cooperation with Russia's influence operation. There are many unanswered questions. Why was Rice receiving raw intelligence reports in the first place about the Trump transition? Particularly if they were not pertaining to Russia, as Nunes himself has said. Was this an isolated activity for Rice, or part of a larger pattern?

It's worth finding out whether any of this intelligence was weaponized as part of a campaign to delegitimize the current president. It's a pity the congressman who brought this matter to the attention of the public is now being investigated for something so frivolous.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Eli Lake at elake1@bloomberg.net

    To contact the editor responsible for this story:
    Philip Gray at philipgray@bloomberg.net

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