Former U.S. district judge John S. Martin, writing in The Post to debunk the baseless proposal by House Freedom Caucus members to impeach Deputy Attorney General Rod J. Rosenstein, observes:
Their inexcusable acts include:
- The caper by House Intelligence Committee Chairman Devin Nunes (R-Calif.) in which he scurried over to the White House to review classified documents and then tried to push the fake “unmasking” scandal;
- Nunes’s memo falsely stating that information about the Christopher Steele dossier’s origins was omitted from the Foreign Intelligence Security Court warrant application to conduct surveillance on suspected spy Carter Page;
- The outing of a confidential intelligence source;
- The badgering of Rosenstein for documents from an ongoing investigation and the bogus impeachment articles cooked up by Reps. Mark Meadows (R-N.C.) and Jim Jordan (R-Ohio);
- False accusations against the FBI (e.g. accusing FBI officials of aiding Hillary Clinton in the campaign) that were discredited by the inspector general’s report; and
- Refusal to obtain relevant documents (e.g. the blocked phone number that Donald Trump Jr. called in close proximity to the Russia meeting in June 2016).
Some of these aren’t legally actionable. It’s no crime to be a rotten committee chairman, although it’s a very good reason to vote Nunes and others out of office. If being a jerk to a witness at a hearing were a crime, most of Congress would be locked up. However, an accounting of how the oversight process went badly awry and how to fix it will be needed. That perhaps can be undertaken in the context of an ethics proceeding, a subsequent Congress’s intelligence committee or an independent commission. In short, we cannot have another House Intelligence Committee that behaves like this one; preventing that is the job of responsible lawmakers. Representatives who behaved dishonestly can be sanctioned by the House.
There are, however, incidents that do smack of obstruction. Congressional votes and committee work, speeches on the floor and other action directly relating to the legislative process may be protected by the “speech or debate” clause. The constitutional provision protects members of Congress from being sued or prosecuted for carrying out their official duties. However, there is nothing official in sneaking over to the White House to review classified materials and then publicly misrepresenting them. There is nothing official in outing a confidential source.
Moreover, one doesn’t have to be a mystery writer to surmise that Nunes and members of the Freedom Caucus may have been working in concert and consultation with Trump lawyers and/or aides. In particular, the crafting of the Nunes memo and its release by the White House was a joint operation, if you will, requiring congressmen to piece together a misleading account and the White House to sign off on it, authorizing its release. Congressmen, Trump lawyers and White House aides conferring with intent to mislead investigators and the public, to disable the inquiry and/or to discredit law enforcement sounds an awful lot like obstruction of justice. Conversations or documents relating to that sort of conspiracy are in no way privileged.
Norman Eisen, Laurence Tribe and Caroline Frederickson wrote in February: “Endeavoring to stop an investigation, if done with corrupt intent, may constitute obstruction of justice. Plotting to assist such action may be conspiracy to obstruct justice. Normally, what is called ‘speech or debate immunity would provide a strong bulwark against any such liability for Mr. Nunes or his staff.” However, they argued, “Mr. Nunes and company may have ranged so far afield that those protections no longer apply. Under the clause, mere peripheral connection to legislative acts cannot serve as a fig leaf to shield criminal conduct.” They argued that if “a member or staff employee of the House Intelligence Committee engaged with the White House to stifle the special counsel inquiry, it would be difficult to see how such collaboration would be” protected by the speech or debate clause.
An investigation into Republican House members’ antics is critical if we want to hold them responsible for actions injurious to our criminal justice system. It is also necessary in order to uncover who if anyone they were colluding with on the White House side of the operation. Any White House official and/or lawyer — with or without the president’s knowledge — scheming to obstruct the investigation in concert with members of Congress needs to be investigated and held accountable.
In sum, for now, the focus of the Russia investigation properly has been on the president’s action and those of others in the White House and Trump orbit. However, we shouldn’t forget about Republican representatives’ malfeasance and the goings-on between Trump loyalists in Congress and those in the White House. Rather than simply play defense on behalf of Rosenstein and the Russian investigators, defenders of the rule of law need to go on offense, demanding Nunes, Meadows and Jordan come clean on their actions in support of a president trying to thwart a legitimate investigation. It all needs to come out.