This article has been updated.
There are three possible explanations for the ongoing tension between congressional investigators and the Department of Justice.
The first is that the investigators, led by Rep. Devin Nunes (R-Calif.), are using Justice’s reluctance to share classified documents as a means of undercutting the investigation into Russian interference in the 2016 election and, more specifically, to cast Deputy Attorney General Rod J. Rosenstein as a bad actor to facilitate his firing. Rosenstein, as you may be aware, both appointed special counsel Robert S. Mueller III and has sole authority over Mueller and his investigation; ousting Rosenstein could severely hamper Mueller’s probe.
The second is that Rosenstein and Justice officials actually are trying to hamper a congressional investigation into the origin of the counterintelligence probe into the 2016 presidential campaign of Donald Trump. Nunes has frequently argued that the investigation was born from biased information and conducted by biased FBI officials. Rosenstein and FBI Director Christopher A. Wray, the argument goes, are trying to prevent that bias from being revealed by making it hard for Nunes et al. to review important materials.
The third is that this is an expected tension between oversight committees and the people they oversee, the sort of traditional tug-of-war that one would expect from parties seeking as much information as possible and others worried about releasing more than they should.
This third is probably the least popular of the three theories.
On Wednesday, The Washington Post reported that the tension between congressional Republicans and leaders at Justice was coming to a head, with the suggestion from Republicans close to President Trump that Rosenstein might face impeachment proceedings if he doesn’t turn over documents requested by investigators.
It’s important to note that this pressure comes at a point in time when Rosenstein has increasingly been a focus of negative attention from Trump. It may simply be a coincidence that Rosenstein is being threatened with congressional action at the same time that Trump is offering wan responses to questions about whether he’ll fire the deputy attorney general. (His argument Wednesday evening was, in short, “Well, I haven’t fired him yet.”) Your perspective on whether it’s a coincidence is probably tied to which of the three above theories you subscribe to.
The pressure on Rosenstein and Justice to release documents related to the investigations into the Trump campaign is indeed not new, having begun more than a year ago. What is new, though, is the pace at which Republican investigators are seeking responses and the extent to which they seem to be willing to argue that extraordinary measures are required.
There’s another complicating factor. The critiques of the Department of Justice are largely being led by Nunes as head of the House Intelligence Committee. Nunes’s enthusiastic defenses of Trump, though, have twice led to charges that he overstepped his bounds and have cast suspicion over the motivations behind his actions.
It’s worth fleshing out the timeline of how and where Nunes, Trump, investigators and the Department of Justice interacted.
March 4, 2017
Trump tweets about wiretapping.
March 8, 2017
The House Intelligence Committee (“Intelligence” from here on) asks Justice for documents, including “relevant FISA applications.” It’s not clear what these documents are.
March 15, 2017
Nunes tells the media that allies of Trump’s may have been swept up in incidental collection of intelligence information. This becomes central to Trump’s defense of his tweet: Maybe it wasn’t wiretapping as such, but the government did conduct surveillance on members of his team.
Justice provides the documents requested on March 8 on a “read-and-return” basis — meaning they weren’t released to the committee.
March 21, 2017
Nunes is called to the White House, where he reviews classified documents indicating that some Trump staffers’ names were “unmasked” in intelligence documents. In other words, the government removed the anonymity that is given to Americans whose communications with foreign actors are inadvertently collected by intelligence agencies.
March 22, 2017
Nunes reveals what he learned about the unmasking to the media.
April 6, 2017
Nunes recuses himself from issues concerning the Russia investigation after questions are raised about the information he shared with the media.
May 9, 2017
Intelligence sends a request for information to Attorney General Jeff Sessions. (It’s not clear what the request was; it’s mentioned in a letter written in September.) This is the same day that FBI Director James B. Comey was fired.
May 16, 2017
Intelligence asks for an interview with then-acting FBI director Andrew McCabe, a request that is turned down two months later.
Aug. 24, 2017
Intelligence subpoenas Justice and the FBI for:
- Documents concerning the agencies’ relationship with former British intelligence officer Christopher Steele and the dossier of reports he compiled while working for Fusion GPS on behalf of a law firm hired by the campaign of Democratic presidential candidate Hillary Clinton.
- Copies of any FISA applications including information provided by Steele or Fusion GPS.
Deadline for response is Sept. 1.
Sept. 1, 2017
Nunes writes a letter to Sessions threatening contempt charges after not receiving the materials from the subpoena.
Dec. 3, 2017
Trump tweets about the revelation that an FBI agent who had texted negative information about him was removed from Mueller’s team.
That revelation also prompts Nunes to direct staff to prepare a contempt of Congress resolution against Wray and Rosenstein.
“By hiding from Congress, and from the American people, documented political bias by a key FBI head investigator for both the Russia collusion probe and the Clinton email investigation, the FBI and DOJ engaged in a willful attempt to thwart Congress’ constitutional oversight responsibility,” Nunes said in a statement.
Dec. 7, 2017
Nunes is cleared of wrongdoing in regard to his sharing of information about unmasking.
Jan. 4, 2018
Nunes memorializes a conversation with Rosenstein in which the deputy attorney general agreed to allow Intelligence investigators and staff to review unredacted versions of documents requested in August. The review is to take place on Jan. 5.
Jan. 18, 2018
A staffer for Nunes writes a four-page memo alleging that the surveillance of former Trump campaign adviser Carter Page was dependent on information collected by Steele without disclosing to the court that Steele was being paid by the Clinton campaign and the Democratic National Committee. Democrats, the FBI and outside observers criticize the memo as incomplete and relying on cherry-picked information.
Feb. 2, 2018
After a great deal of controversy, Nunes’s memo is released on the authority of the White House.
Feb. 27, 2018
Nunes informally requests from Wray the FBI document (an Electronic Communication, or EC) outlining the rationale for launching the counterintelligence operation against Trump in July 2016.
March 14, 2018
Committee investigators review a redacted version of the EC.
April 4, 2018
Intelligence formally requests an unredacted version of the EC concerning the Trump investigation and the unredacted FISA applications targeting Carter Page.
Deadline is April 11.
April 6, 2018
Justice rejects the committee’s request for the documents but allows Intelligence members to review the applications at the department.
April 7, 2018
Trump tweets criticism of the decision.
April 9, 2018
FBI investigators, acting on a warrant approved by Rosenstein and signed by a federal magistrate judge, raid Trump attorney Michael Cohen’s home and office.
April 12, 2018
Trump and Rosenstein meet at the White House. Trump encourages Rosenstein to work with congressional investigators.
April 13, 2018
Oversight, Judiciary and Intelligence committees request unredacted versions of the memos written by Comey after his meetings with Trump.
Deadline for response is April 16.
April 16, 2018
Rosenstein meets with Reps. Mark Meadows (R-N.C.) and Jim Jordan (R-Ohio), two allies of Trump’s who warned him that he might face impeachment hearings if he didn’t turn over requested documents.
Rosenstein also responds in writing to the committee request for the Comey memos, saying that he hopes to have an answer by midweek.
April 18, 2018
The House Judiciary Committee prepares a subpoena for Comey memos.
Members of Congress issue a criminal referral to the Department of Justice for investigations into a number of people involved in the matters above.
This timeline can be read with an eye to each of the three theories outlined at the outset. In December, Nunes threatened impeachment for not responding to an August subpoena. This week, the threat seemed to focus on failure to respond to a request from earlier this month. Perhaps congressional investigators have grown increasingly frustrated with what they see as ongoing obstruction into their investigations by Justice Department officials. Or perhaps there is a strategy in place to leverage this ongoing interaction as a rationale for putting pressure on Rosenstein at a moment when Trump might appreciate someone else at the head of the Mueller investigation.
If Rosenstein does face contempt or impeachment charges, a version of the timeline above will probably play a central role in that action — and may be used as fodder for his defense.
Update: On Thursday evening, the Comey memos were released to Congress.