By Ryan Lizza, The New Yorker, April 11, 2017
Norm Eisen, the dean of Washington ethics watchdogs, has a simple way of describing his reaction to hearing Devin Nunes, the chairman of the House Intelligence Committee and the lawmaker formerly in charge of an investigation into Russian meddling in last year’s election, disclose classified information to the press last month. “I fell out of my chair,” Eisen told me.
It’s still not entirely clear what Nunes was up to when, on March 22nd, after reviewing classified intelligence reports at the White House the previous night, he held two press conferences to tell reporters about what he’d seen. The reports apparently suggested that President Trump and his associates had been “incidentally” surveilled by U.S. intelligence agencies. “This appears to be all legally collected foreign intelligence under fisa, where there was incidental collection that then ended up in reporting channels and was widely disseminated,” Nunes said at his first press conference that day, at the Capitol. After meeting with Trump at the White House, Nunes spoke to reporters again, and added, “It has to do with fisa, and there are multiple fisa warrants that are out there, but there’s nothing criminal at all involved.” He said that the intercepts he reviewed included the names of Trump Administration officials and possibly the President himself.
The effort seemed intended to divert attention from his own committee’s probe, and to offer Trump cover for his false tweets claiming that Barack Obama had wiretapped Trump Tower. Eisen, who once served as the U.S. Ambassador to the Czech Republic, immediately recognized that Nunes had said things he shouldn’t have. “Ambassadors get the highest security clearance, and I was trained to be responsible for the appropriate management of classified information,” he said. “In addition to all the other shenanigans and bizarre contortions of Nunes, he described in such detail what he had seen at the White House. You just don’t do that.” The very existence of a fisa warrant is highly classified information, and Nunes casually talked about “multiple” warrants. And, while his language was vague, his description of intercepts—presumably of foreign officials talking to or about Trump and his associates—risked tipping off the targets of N.S.A. surveillance.
Earlier this year, Nunes had decried the leak of an intercepted conversation between Sergey Kislyak, the Russian Ambassador, and Michael Flynn, Trump’s former national-security adviser. But in disclosing what he saw at the White House Nunes appeared to be doing something similar. Only instead of leaking the classified information anonymously, he was talking about it in front of cameras. A week later, Eisen’s nonprofit group, Citizens for Responsibility and Ethics in Washington (crew), along with Democracy 21, sent a letter to the Office of Congressional Ethics, requesting that it investigate whether Nunes disclosed classified information “in violation of House Ethics Rules.” Last Thursday, in a move that was overshadowed by the air strike on Syria, the House Ethics Committee announced that it was formally investigating Nunes.
That was enough to prompt Nunes to step down from leading the Russia probe. He handed responsibility over to Mike Conaway, a Republican from Texas, and took a shot at Eisen and his fellow ethics advocates as he departed. “Several leftwing activist groups have filed accusations against me with the Office of Congressional Ethics,” Nunes said in a statement. “The charges are entirely false and politically motivated, and are being leveled just as the American people are beginning to learn the truth about the improper unmasking of the identities of U.S. citizens and other abuses of power.”
After almost three weeks spent sidetracked by Trump’s tweets and Nunes’s antics, Democrats on the House Intelligence Committee are optimistic that they will be able to get back to investigating Russia. “It gives us a chance to have a fresh start,” Adam Schiff, who is the ranking Democrat on the committee and who had called for Nunes to recuse himself, told me.
The larger lesson of the Nunes episode is that some of the creaky machinery of ethics checks and balances in Washington is still capable of functioning. To be sure, the House Oversight Committee, which spent years vigorously investigating the Obama Administration, has been essentially shuttered by its chairman, Jason Chaffetz. But outside ethics watchdogs are keeping busy in Trump’s Washington. crew is perhaps the best example. Earlier this year, House Republicans tried to gut the Office of Congressional Ethics—an independent entity set up by the House—prompting an outcry, led by crew, which even caught Trump’s attention. “With all that Congress has to work on, do they really have to make the weakening of the Independent Ethics Watchdog, as unfair as it may be, their number one act and priority. Focus on tax reform, healthcare and so many other things of far greater importance!” Trump said on Twitter. The lawmakers backed down.
In February, after Kellyanne Conway promoted Ivanka Trump’s retail brand, crew filed a complaint against her. When reports surfaced that Ivanka might take a role in the White House without formally being an employee—thus potentially skirting numerous ethical and reporting requirements—a complaint filed by crew reportedly prompted the White House to classify her as an employee after all. The group was also part of the push to get Attorney General Jeff Sessions to recuse himself from any federal investigation of the 2016 campaign.
Before taking office, Trump ignored the advice of the federal Office of Government Ethics, which publicly pressed him to operate under the same rules required for his Cabinet members and to fully divest from his business interests. As a result, a key question of the Trump era is whether he might be in violation of the Emoluments Clause of the Constitution, which prohibits officials from receiving gifts from foreign states, when, for instance, foreign diplomats pay for rooms at Trump hotels. In January, crew filed a lawsuit over the emoluments issue, though several legal scholars have noted that the group may have a tough time making the case that it has standing to sue Trump.
Eisen, who is unfailingly optimistic, disagrees. “I think that the public awareness of this unethical governing environment has something to do with Trump’s mid-thirties approval ratings,” he said. “I think that our emoluments case is going to be the most impactful of all.”