National Security & Defense

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

Rep. Nunes speaks to reporters on Capitol Hill, March 24, 2017. (Reuters photo: Jonathan Ernst)
Aspects of the FBI’s handling of the Flynn case deserve further scrutiny.

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.

Nevertheless, as I’ve further elaborated, aspects of the way Flynn’s case was handled by the FBI raise questions. The New York Times matter-of-factly reported that the FBI was sharing intelligence about the Flynn-Kislyak call with “Obama advisers” and “Obama officials,” who were pressing the FBI about whether a corrupt, prosecutable deal had been struck regarding the sanctions:

Obama advisers heard separately from the F.B.I. about Mr. Flynn’s conversation with Mr. Kislyak, whose calls were routinely monitored by American intelligence agencies that track Russian diplomats. The Obama advisers grew suspicious that perhaps there had been a secret deal between the incoming team and Moscow, which could violate the rarely enforced, two-century-old Logan Act barring private citizens from negotiating with foreign powers in disputes with the United States.

The Obama officials asked the F.B.I. if a quid pro quo had been discussed on the call, and the answer came back no, according to one of the officials, who like others asked not to be named discussing delicate communications. The topic of sanctions came up, they were told, but there was no deal.

The Times further reports that Flynn was “grilled” by FBI agents regarding his conversation with Kislyak. Why? There was nothing criminal about the conversation — the claim, reported by the Times, that “Obama advisers” suspected a violation of the never-prosecuted Logan Act is sheer nonsense. Having a conversation with Russia’s ambassador was precisely the sort of thing an incoming national-security adviser would do during a transition between administrations — indeed, Flynn had conversations with various foreign officials in his role. And the FBI had a recording of the conversation, so there was no need to “grill” Flynn about it — unless, some have suggested, it was hoped that Flynn would lie and thus be prosecutable for making false statements to federal investigators.

So exactly why was the FBI investigating Flynn? With which “Obama advisers” and “Obama officials” were FBI agents sharing classified information and consulting on the matter of Flynn’s activities — and whether those activities constituted a crime? Flynn had been a fierce critic of the Obama administration. Was an effort being made to develop a criminal case against him?

Nunes has been trying to get answers from the FBI about how Flynn was handled, including by sending the Bureau a March 15 letter. According to Nunes, the NSA has been forthcoming in response to his inquiries about “unmasking” and the like, but “so far the FBI has not told us whether or not they’re going to respond to our March 15 letter.”

It should come as no surprise that the chairman of the House Intelligence Committee has good sources in the intelligence community; and under the circumstances, he can hardly be blamed for tapping them. When conducting investigations that disclosures of information could compromise, the FBI is known to be stingy — as it should be. And when being asked by Congress to justify their own conduct, especially in a matter of great public interest, most government agencies drag their feet. The FBI may have satisfactory explanations for everything that has been done, but it is apparently not in a hurry to provide them. Meanwhile, there are legitimate questions about Obama White House involvement in foreign-intelligence collection efforts that appear to have lavished extraordinary attention on people associated with the Trump campaign and transition. Nunes is right to press those questions.

Again, he has made missteps. But his actions should be kept in perspective. The chairman has openly and repeatedly stated that he knows of no evidence supporting Trump’s claim that Obama had his wires tapped at Trump Tower. Moreover, he has acknowledged that the interception of communications by Trump associates was “incidental” to lawful foreign-intelligence collection activities. Nunes is surely sympathetic to Trump, but he is not parroting the president’s script. He has questioned only the handling of the lawfully obtained intelligence, and his rationale for doing so is surely no less plausible than partisan Democratic claims that “Russia hacked the election.”

As one would expect, Nunes’s lapses have raised the decibel level of calls for a special congressional committee to take over the investigation. We may end up there, but I still believe the House and Senate Intelligence Committees should first have an opportunity to show they can do the job; I harbor no illusions that a special committee would be any less partisan than the existing committees.

All that said, the answers to two questions ought to be of a lot more interest to us than who is doing the asking. Those questions are: Which “Obama advisers” were being consulted by intelligence agents regarding Michael Flynn? And were incidentally intercepted conversations of other Trump officials or associates also shared with “Obama advisers”?

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