Nunes' Disclosures May Signal a Watergate-Level Scandal

Nunes' Disclosures May Signal a Watergate-Level Scandal
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As chairman of the House Intelligence Committee, Devin Nunes should not have gone first to tell President Trump what he’d learned about the possible surveillance of the Trump campaign by the intelligence community during the Obama administration. As a matter of comity, at the least, he should have brought that information to his Democratic counterpart on the committee, Adam Schiff.

But that error should not be used by the media as a reason to ignore the significance of Nunes’ information. If he is correct that the Obama administration surveilled the Trump campaign, we have a matter at least as significant—if not more so—than the possibility, still unconfirmed in any way, that the Trump campaign collaborated or coordinated with Russia.

The report by the Wall Street Journal on Tuesday, although based on anonymous sources, adds significant credibility to the idea that the intelligence community during the previous administration acted unlawfully. Whether White House officials actually encouraged this is a Watergate-level issue that should be the first priority of any congressional investigations.  

While there were always grounds for suspicion--many media outlets had reported leaks about communications between Trump campaign officials and officials of the Russian government, and even a telephone conversation between President Trump and Australian prime minister—a column in the Wall Street Journal last week by Peter Hoekstra, a former chairman of the House Intelligence Committee, made clear how significant and unprecedented these leaks were.  

Hoekstra pointed out that the transcripts or other details of the intercepted conversations were what is called “raw” intelligence, which is almost never distributed to policymakers, who only see a resulting intelligence product. He described how difficult it was for him—even as chair of the House Intelligence Committee—to have access to the kind of raw information that in this case was widely distributed within the intelligence community and, as we now know, leaked to the media.

Even so, the intelligence in this case was more “raw” than most, since it apparently included the actual names of the American parties who were engaged in these surveilled conversations. Normally, when an American is a party, his or her name is “masked”—deleted—from the surveillance reports. This apparently was not done with the Trump campaign officials.  

We also know, from the questioning of FBI Director James Comey at last month’s hearing, that “unmasking” the names of the Americans who were involved in conversations with foreign persons is a felony, punishable by 10 years in prison. So this matter clearly involved criminal actions that must be investigated and punished. But it may not end there. According to the Wall Street Journal’s sources, the unmasking occurred on matters that had nothing to do with Russia and was circulated at least to Susan Rice, a top Obama White House official. 

In speaking to the media about surveillance of people in the Trump campaign, Nunes said he thought that the intercepts themselves might have been lawful because they were “incidental” to authorized foreign intelligence activity. Perhaps, but this is a key question. It should not be assumed that, just because a foreign person—say, the Russian ambassador—was party to the intercepted conversations, that the American involved was not the real target.

The most serious issue—as is often true in criminal investigations—is motive. For example, we don’t know why these particular conversations were monitored. It is possible to select foreign targets because the agencies involved, or those who directed them, knew that certain Americans are communicating with these specific foreign persons. This would be what is called “reverse targeting.”

If this happened, the choice of a target was made not for foreign intelligence reasons but to find out what the American party was saying in the communication.  The fact that transcripts of these conversations were made, that the Americans participating in the conversations were eventually “unmasked,” and that these transcripts were distributed throughout the intelligence community and leaked to the media, is significant evidence that the motive was not to learn about the intentions of our foreign adversaries but to surveille the Americans involved and release the resulting information through leaks.

Sadly, although a serious investigation is warranted here, it is not yet clear that the FBI or the Justice Department can do it, since members of the FBI themselves could have been involved in the unmasking, and perhaps more.

In his testimony before the House Intelligence Committee, Comey dropped in the important fact that the FBI had been investigating the Trump campaign since July—during the Obama administration, and well before the election.

It is painful to be suspicious about this, but as Hoekstra noted, with his long familiarity with the intelligence business, “an investigation without surveillance would be farcical.” So we have to consider the possibility that the FBI itself is involved in this matter.

The smoking gun in Watergate was President Nixon’s effort to use the CIA to impede an FBI investigation. What kind of “gate” is the misuse of the intelligence community to get inside information on an opposing presidential candidate?

It may turn out that the Democrats, so eager to prove that the Trump campaign was colluding with the Russians, have unknowingly blundered into a matter that will come back to damage  both their party and the Obama administration.

Peter J. Wallison was White House counsel in the Reagan administration.

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