Did Devin Nunes Obstruct Justice?

In a brazen attempt to undermine the Russia investigation, Nunes is sullying the FBI before moving on to defame other government agencies.

As the Republican attempt to derail the Trump-Russia investigation blindly lurches from corrupt conspiracy to slapstick farce, the public is in danger of losing the plot. And maybe that is precisely the intent.

Although some media outlets have deconstructed House Intelligence Committee Chairman Devin Nunes’s “bombshell” memo about alleged FBI malfeasance in the Russia investigation as a tissue of false inferences, tendentious pleading, and outright misrepresentation, their analysis typically begins only after the headline, which typically reports some variation on Trump’s claiming total vindication by the memo.

Less politically inclined Americans who pay only passing attention to the news from Washington are likely to receive a false impression of the story’s significance. In this, the public is not entirely at fault: mainstream political journalism too often consists of a topic sentence followed by quote-mined “reactions” that tick-tock metronomically between opposing partisans.

The exploitability of this defect in news reporting must have occurred to congressional Republicans, and even to a dim and flickering bulb like Nunes: throw up enough mud—and everybody gets splattered. Then the public, like iron filings obeying a magnet, will default to its time-honored belief that this is how government always has and always will operate, and that both sides are equally to blame, a mindset reinforced by the media’s usual instinct for false-equivalency.

This syndrome is exacerbated when the press repeatedly falls for the same transparent stunt pulled by the same actors. Remember in March, when the then-unknown Nunes breathlessly revealed supposed information in his possession about incidental intelligence collection on members of the Trump campaign? According to his tale, malign appointees in the Obama administration “unmasked” innocent Trump campaign figures in order to defame those incidental targets. Nunes followed this revelation with a melodramatic trip to the White House with the purpose of, presumably, tossing the incriminating documents over the fence to some hard-working public servant appointed by the president.

The farcical exploit ended when he had to step aside from the intelligence committee’s Russia probe because even the normally somnolent Office of Congressional Ethics investigated whether he had made unauthorized disclosures of classified information.

Yet the press bit again when he tried the same gambit during the last two weeks. And even on the same day that the gambit ignominiously flopped (accompanied by Nunes’s admission that he hadn’t even read the information supposedly underlying his staff’s memo), he was brazenly threatening to investigate the State Department’s purported nefarious role in the Trump-Russia probe. Will the third time be the charm, or will the media yet again play Charlie Brown to Nunes’s Lucy, this time claiming a vast conspiracy at State?

At some point, this charade must end and the public must be asked the question, loudly and insistently, did Devin Nunes obstruct justice? Jerrold Nadler, ranking member of the House Judiciary Committee, appears to think so. He says that Nunes and fellow Republicans “are now part and parcel to an organized effort to obstruct” Special Counsel Mueller’s investigation.

To be sure, it is a heavy lift to prove that a member of Congress, ostensibly acting under the color of his official duties, has obstructed justice or otherwise committed a crime. The legislative branch generally gets a pass: if truly rigorous criteria were applied, half of Capitol Hill would be under indictment.

But not always. Bribery cannot be whitewashed under the rubric of constituent service, and courts just might take a dim view of a politician monkeying with law enforcement. And Nunes’s actions, in attempting to sully the FBI before moving on to defame other agencies of government, are reminiscent of another legislator’s misdeeds from decades past, a certain Midwestern senator who terrorized the American political system before he came down with an ignominious thump.

Like Nunes, Senator Joseph McCarthy was “just asking questions.” Like Nunes, his inquisition went from one department of government to the next, rooting out imaginary wrongdoers by means of innuendo and slander. Like Nunes, he thought he had the perfect cover: he was merely performing due diligence as a legislator, and in any case, he was protected by the “Speech and Debate” clause of the Constitution.

But eventually his outrages wore thin. Although McCarthy never had to answer to the courts, his colleagues, tiring of his antics, censured him, and his power evaporated.

If congressional Democrats have any backbone, a matter on which I am not willing to wager, they will ask one question with relentless, jackhammer persistence whenever they are within sight of a TV camera or a microphone—did Devin Nunes obstruct justice?

Mike Lofgren

Mike Lofgren is a former career congressional staff member who served on the House and Senate budget committees. His latest book is The Deep State: The Fall of the Constitution and the Rise of a Shadow Government.