Devin Nunes, the Republican chairman of the House Intelligence Committee, has thrown himself into the public spotlight with an outbreak of bizarre actions and incoherent television appearances.
Nunes’s recent actions make it highly doubtful that the Intelligence Committee, under his leadership, can conduct a fair, unbiased investigation into whether Donald Trump or his surrogates colluded with Russia in its interference with the 2016 presidential election.
Even the look and feel of Nunes’s recent appearances is disturbing. Nunes’s demeanor is almost totally lacking in affect, other than a perpetual look of bewilderment. Watching his public appearances, it is impossible not to wonder whether, beyond being totally compromised, Nunes might also be mentally impaired.
The lack of substance in Nunes’s “disclosures” matches his blank affect.
According to Nunes, he met last week with an unnamed “intelligence official” at a secure location on the White House grounds. The official provided Nunes with information “comprised of executive branch documents that have not been provided to Congress.”
Rather than sharing this information with Adam Schiff, the ranking Democrat, or any other member of the Intelligence Committee, Nunes made a great show of going to the White House to alert Trump to the existence of these documents. He declared himself “alarmed” at what he had seen, but wouldn’t say exactly what it was that alarmed him.
In fact, what Nunes says he discovered is anything but alarming.
To the contrary, Nunes’s supposed “discovery” is so innocuous as to make people wonder what this is all about.
Nunes’ big discovery is the thoroughly unsurprising fact that in the course of conducting routine, legal surveillance of foreign nationals, it is “possible” that Trump or members of his campaign may have been subject to “incidental” intelligence collection.
If anything is alarming here, it’s the fact that Nunes was alarmed by this innocuous information. To paraphrase FDR, the only thing we have to be alarmed about is alarm itself.
Incidental collection happens all the time. It occurs when, in the course of legal surveillance of a foreign national, an intelligence agency picks up communications with, or even just about an American citizen. In other words, although neither Trump nor his surrogates were the targets of surveillance, they may have been mentioned in conversations between foreign agents who were.
When that happens, the names of the innocent Americans who were caught up in incidental collection are generally “masked” in internal intelligence reports. Instead of being named, they are identified only as “American 1,” or something similar. That protects their privacy if they were only incidentally and innocently involved.
“To paraphrase FDR, the only thing we have to be alarmed about is alarm itself.”
However, each intelligence agency has procedures to “unmask” the names if it believes it is necessary for purposes of the investigation, or if they have cause to believe that there may be criminal conduct involved.
Nunes has not claimed that anybody was improperly unmasked. He has only suggested that this “might” have happened. He has presented no evidence, or even a coherent argument, that this actually happened. Maybe it did. Maybe it didn’t. Who knows? Not Nunes.
Nor does Nunes seem to be concerned with the far more serious issue of whether Trump or his associates might have been unmasked appropriately. If that were the case, it would mean that they might not have been merely incidental, innocent actors. Rather, it could mean that they might have been involved in collusion or other criminal conduct.
But that prospect doesn’t fit Trump’s narrative, so it doesn’t bother Nunes, or any of the Republicans who are sticking by him. More important to them is the possibility that some bureaucrat in the intelligence community might have been overzealous in unmasking the names of Trump or his associates in internal, non-public reports.
All of this begs the question, what is this really all about? Why is Nunes making such a big deal about this nothing burger?
The reason is that he is trying to provide public relations cover to Donald Trump. Somehow, Nunes seems to think, this “revelation” provides a measure of vindication of Trump’s lie that President Obama had him wiretapped. In the words of Jim Himes, a Democratic member of the House Intelligence Committee, Nunes is trying to give Trump “the barest of fig leaves on the outrageous tweet about Barack Obama wiretapping him.”
Trump seems to agree, not only about the fig leaf, but also about how bare it is. In uncharacteristically measured words, Trump declared himself “somewhat” vindicated.
The fact that Nunes came to the White House grounds to get the information, and then made a big show of rushing back to the White to tell Trump about it, raises the suspicion that the whole thing might have been a White House orchestrated charade. The suspicion is that Nunes and the White House might have colluded in a clumsy attempt to provide cover for a Trump lie.
How, you may ask, does news that Trump or his surrogates may have been incidentally swept up in routine, legal surveillance of foreign agents vindicate Trump’s false allegation that President Obama illegally had him wiretapped?
But it does trigger a whole new set of lies that fall into a category that I call “The Kellyanne.” (“’Don’t Worry, I’ll Pull Out’ and Other Trump Lies”)
Trump and his surrogates regularly employ The Kellyanne to provide cover for Trump’s lies. It’s a simple technique. When Trump tells a lie, they pretend that he really said something else, and then they defend the “something else,” not the lie.
Trump’s people have already employed this technique to Trump’s lie about being wire tapped. For instance, they have repeatedly pointed to a January 19, 2017 article in the New York Times (“Intercepted Russian Communications Part of Inquiry Into Trump Associates”) as vindication of Trump’s false claim that President Obama wiretapped him.
But the Times article didn’t come close to supporting that claim. Quite to the contrary, the article made it absolutely clear that the communications they were discussing might have had nothing whatever to do with Trump: “It is not clear whether the intercepted communications had anything to do with Mr. Trump’s campaign, or Mr. Trump himself.”
For Trump and his supporters, it was enough that the Times article used the words “wire tapped” in discussing information obtained during the campaign. They pretend not to notice that the article never even remotely suggested that the person doing the wiretapping was Obama, or that the person being wiretapped was Trump.
Now Nunes has joined the parade. The “something else” he is defending is that Trump, or somebody within his orbit, may have been incidentally caught up in legal wiretapping of foreign agents. Or maybe, possibly, their names may have been unmasked improperly. Or maybe they weren’t unmasked at all. Or maybe “something else.”
What makes this noteworthy, even alarming, isn’t the substance of what Nunes disclosed. It’s the fact that the guy who is supposed to be leading an investigation into possible collusion by Trump in Russia’s interference with our election is going out of his way to provide phony political cover for Trump.
That should disqualify him from leading an investigation into possible Trump wrongdoing.
He can’t act as both judge and defense counsel at the same time.
Philip Rotner is an attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated. Follow Philip on Twitter at @PhilipRotner.