The Un-Recusal of Devin Nunes

It was less than two months ago that Representative Devin Nunes, chairman of the House Intelligence Committee, temporarily recused himself from leading the panel’s Russia investigation amid allegations that he disclosed classified information in what his Democratic critics called an attempt to substantiate President Trump’s false claim that his predecessor ordered wiretaps on Trump Tower.

On Wednesday, the California Republican appeared to dive back into that inquiry, exercising his authority as chairman to unilaterally issue subpoenas to the intelligence community for information on the alleged improper “unmasking” of Trump campaign officials referred to in intelligence reports by members of the Obama administration.

Nunes’s move prompted an outcry from Democrats and ethics watchdog groups, who accused Nunes of violating the terms of his recusal from the Russia investigation.

“This is an incredibly inappropriate action, and it is a matter that the House Ethics Committee must look at promptly. Nunes is supposed to be completely out of the Russia investigation,” said Fred Wertheimer, president of Democracy 21, a group whose complaint to the Ethics Committee prompted Nunes to announce he was stepping back from the Russia probe in early April. The allegations stem from Nunes’s claim that he had uncovered evidence that Trump associates had been caught up in incidentally recorded conversations involving the Trump campaign. “Incidental” collection is when intelligence agencies obtain the communications of individuals who are not the target of surveillance, because they correspond with or are mentioned by an individual who is being targeted.

Nunes has since accused Obama officials of improperly “unmasking” Trump associates who were caught up in conversations involving individuals under surveillance.

The names of Americans are typically redacted in such reports unless an official makes a request to reveal or “unmask” them; that request is then assessed and granted or denied by the agencies that produced the intelligence, based on whether unmasking would be necessary to better understand the material. Nunes’s assertions came weeks after Trump first charged in a series of tweets—without evidence— that Obama had his phones tapped at Trump Tower. The president’s claim was refuted by former FBI Director James Comey in congressional testimony before Trump fired him last month.

At the time, Speaker Paul Ryan tasked Representative Mike Conaway of Texas to temporarily take over the Intelligence Committee’s investigation of Russian meddling in the 2016 election while the Ethics Committee looked into the claims against Nunes. (The committee has not completed its investigation and would not comment on Thursday.)

But Ryan chose not to strip Nunes of his chairmanship of the committee, and as chairman he retains the right to issue subpoenas without the consent of Democrats or the full committee. “That authority should have been delegated to Mike Conaway in consultation with myself. That hasn’t happened yet,” the top Democrat on the committee, Representative Adam Schiff of California, said Thursday on MSNBC. “And I think that’s a violation of the recusal by the chairman.”

Conaway and Schiff announced in a joint statement on Wednesday that they had issued subpoenas to Michael Flynn, Trump’s former national security adviser, and to Michael Cohen, the president’s personal lawyer. But committee aides confirmed that three other subpoenas were sent to the FBI, the CIA, and the NSA for information related to the unmasking of Trump campaign officials.

Those subpoenas were unusual because congressional committees typically request documents from government departments and only seek to compel them with subpoenas if they do not cooperate. The committee had given no indication that the intelligence community was uncooperative, and Schiff said Nunes never consulted him before issuing the subpoenas. That in itself would be a violation of the committee’s rules, which give the chairman subpoena power but only “upon consultation with the ranking minority member or a full vote of the committee.”

A spokesman for Nunes would not comment beyond a tweet the chairman sent on Thursday afternoon, which said: “Seeing a lot of fake news from media elites and others who have no interest in violations of Americans' civil liberties via unmaskings.” At a fundraiser in California last weekend, Nunes accused Democrats of wanting to “destroy” the Russia investigation because they are trying to advance the narrative that collusion between Trump and Vladmir Putin is the reason why Hillary Clinton lost. That is the same argument that Trump has advanced repeatedly in the last several weeks as the multiple investigations into his campaign’s ties to Russia have gained steam. On Thursday morning, the president tweeted: “The big story is the ‘unmasking and surveillance’ of people that took place during the Obama Administration.”

To Nunes’s critics, his subpoenas on Wednesday only deepen the perception that he is carrying the water for Trump and is incapable of operating independently of the White House. “It looks like once again he is acting as a puppet for the administration,” Wertheimer said. He said the onus was on Ryan to remove him as chairman of the intelligence committee, which would strip his subpoena power.

Committee aides initially characterized Nunes’s subpoenas as coming outside the scope of the Russia investigation and thereby in accordance with his recusal. But the parameters of the probe explicitly include the leak of classified information, which is at the heart of Nunes’s interest in possible unmasking by the Obama administration. In a new argument, a Republican aide suggested to CNN that Nunes had never formally recused himself from the investigation.

That may be true. In his statement at the time, he said he was allowing Conaway to “temporarily take charge” of the committee’s Russia inquiry and never mentioned the word recusal. Fellow Republicans, Democrats, and independent watchdog groups all treated the move as a recusal, suggesting there was a distinction without a difference. With Nunes’s actions on Wednesday, however, it seems there was quite a big difference indeed.