From the perspective of impartiality, one of the problems with Congress investigating Russia’s meddling in the U.S. election and whether President Trump’s circle had anything to do with it is Congress itself.
It’s a political body made up of — well, politicians. That’s not to say these politicians can’t put on their impartial hats to undertake a large-scale investigation about the independence of U.S. democracy from foreign influence. But congressional investigations have a higher threshold of impartiality to meet than, say, an independent investigation outside the confines of Congress.
In recent days, Rep. Devin Nunes, chairman of the House Intelligence Committee, is making it very hard for his committee to meet those standards of impartiality.
On Monday, Washington was abuzz with news that Nunes, a Trump ally, was on the White House grounds viewing classified information related to the president’s evidence-less claim that President Barack Obama wiretapped Trump Tower during the campaign. A day later, Nunes (R-Calif.) announced that he had information that revealed the president’s conversations during the campaign may have been caught up in a broader, unrelated intelligence net. (The president said he felt “somewhat” vindicated by Nunes’s claim even though Nunes flatly said the president’s accusation that Obama wiretapped Trump Tower “never happened.")
We still don’t know who gave Nunes the surveillance information or its significance to the committee’s broader investigation into Russia’s meddling. Nunes publicly said if the president’s name did show up in surveillance, it had nothing to do with Russia. He also told CNN that the president didn’t even know Nunes was at the White House Tuesday.
But here’s what anyone trying to follow the twists and turns of this Trump-Russia-wiretapping story is left with: A top Republican congressman and Trump ally was at the White House the day before he released information that appeared to somewhat defend the president on his defenseless wiretapping claims.
What’s more, the congressman released this secret information to the president — whose circle is under investigation by the FBI for alleged ties to Russia — before sharing it with his own committee members.
From there, it’s not a stretch for a reasonable person to consider whether Nunes, who served on Trump’s transition team, wants to protect the president. And from there, it’s not a stretch to question the impartiality of the investigation Nunes is leading in the House on Russia meddling in the U.S. election. ("It could very well be the case that Chairman Nunes was briefing members of the administration about an investigation of which they are the subject," Senate Minority Leader Chuck Schumer (D-N.Y.) said on the Senate floor on Monday as he became the top-ranking Democrat to request Nunes step down from his committee post.)
And that, say ethics and national security experts, is where the real damage in Nunes’s White House trip lies.
"This is really unusual behavior of an oversight committee chairman," said Benjamin Wittes, a senior fellow of governance studies at Brookings Institution and editor-in-chief of Lawfare. "And it's hard to understand what could possibly justify it."
“I guess you could say I was gobsmacked by this,” said Norm Ornstein, a nonpartisan ethics scholar with the right-leaning American Enterprise Institute. “The integrity of the system is built on the independence of Congress from any investigation involving the executive branch.
“I just think this is so far over the line you can’t even see the line anymore,” he said.
Ornstein’s outrage isn’t just about Nunes going to the White House to give the president a graceful out on his “wrong” wiretapping claim and overstepping norms to advise committee members first. (“Wrong” is how Nunes has described the president’s claims.)
The U.S. national security apparatus is in the aftermath of a crisis: It is trying to figure out how to react and respond to the fact that a foreign nation got involved in a U.S. presidential election to try to influence it. Impartial investigations — there’s one at the FBI, there’s one in the GOP-controlled Senate Intelligence Committee, there’s one in the GOP-controlled House — are the first step in that process.
“This is a challenge to the foundations of our democracy,” Richard Ledgett, the No. 2 at the National Security Agency, recently told WaPo’s Ellen Nakashima in an interview unrelated to Nunes. " … The idea that another nation state is interfering with that] is a pretty big deal and something we need to figure out. How do we counter that? How do we identify that it’s happening — in real time as opposed to after the fact? And what do we do as a nation to make it stop?”
The lack of answers, Ledgett said, “as an American citizen … gives me a lot of heartburn.”
In other words, the stakes could not be higher that impartial investigations into what Russia did actually stay impartial. Most intelligence officials agree that Russia will probably try to tinker with Western democratic elections again; maybe even that of the United States.
On Monday, White House press secretary Sean Spicer said he didn’t think Nunes had created a perception problem with all this: “You can’t ask someone to do a review of the situation and then create an interference because they’re reviewing the situation,” he said, referring to the fact Nunes probably had help from a White House official to review the classified documents in a secret room.
But Congress, by its nature, was already at risk of appearing motivated by partisanship as it looked into these very critical questions. At the very least, Nunes just opened up the door for people to believe the worst about Congress: that its members put politics above all else.
“If we issue a report where Democrats find one thing and Republicans find another, both sides retreat to their respective corners and nothing gets revealed,” Rep. Adam B. Schiff (Calif.), the top Democrat on the House Intelligence Committee, told The Fix before this Nunes wiretapping news broke.
As I outline here, there are other investigative options besides Congress that could be perceived as more impartial. The FBI confirmed it is looking into alleged Trump connections to Russia. Attorney General Jeff Sessions agreed to step aside from overseeing the investigation after news broke that he met with the Russian ambassador to the United States last year and didn't disclose it in his confirmation hearings before the Senate.
In addition to its Senate and House intelligence committees, Congress could set up a special congressional committee dedicated to investigating this, a la the Republican-majority Benghazi committee. Or it could set up a completely independent investigation outside of Congress, a la the 9/11 Commission. (The latter is what Schiff has called for.)
There’s no immediate sign that Republican leaders would be on board with any of those investigative alternatives. They’re already looking into something their president would rather they leave alone — Russia.
In a statement, AshLee Strong, a spokeswoman for House Speaker Paul D. Ryan (R-Wis.), said: "Speaker Ryan has full confidence that Chairman Nunes is conducting a thorough, fair, and credible investigation."
But Nunes is making it that much harder for Republicans to argue that.