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Whole Lot of Nothin’

March 22, 2017

The House of Representatives Permanent Select Committee on Intelligence is supposed to be investigating the scope of Russian interference in the 2016 presidential election, whether Donald Trump’s campaign worked with the Russians, and the facts and circumstances of classified leaks to the press. The committee’s investigation has suffered some “scope creep,” and now also includes whether there was any basis for Trump’s allegation that then-President Barack Obama “had my ‘wires tapped’ in Trump Tower” before the election.

Today, the Republican Chairman of the House intelligence committee, Devin Nunes, announced at a press conference that members of the Trump transition team had been picked up “incidentally” in surveillance authorized by the Foreign Intelligence Surveillance Act court. His intention was to show that Trump’s allegation against Obama was well founded.

Trump immediately claimed that Nunes’s allegation vindicated his accusation of Obama. The right-wing Internet media quickly followed suit. But the Nunes allegation did no such thing.

“Incidental” capture of information about a person other than the target of the surveillance occurs when the person comes up in the course of surveillance of the actual target. Monitoring the communications of a target necessarily involves hearing or seeing communications of other people with the target – if you wiretap a target’s phone, you’ll hear both parties to all of the target’s conversations.

If a member of the Trump transition was “incidentally” picked up pursuant to a FISA warrant, that means either that the target of the warrant had a communication with the transition team member or that the name of the transition team member was mentioned during the communication, either by the target or by the person the target was talking to.

The monitored communication is transcribed for review by investigators. The name of anyone not a target – at least of any American not a target – that appears in the communication is supposed to be “masked.” “Masking” a name protects it from being read. If necessary to understand the communication more fully, the name can be “unmasked,” but supposedly only a few very high-ranking officials have the authority to order “unmasking.”

Nunes asserted that the Trump transition team member or members were picked up “incidentally.” Assuming that is correct, that means that Nunes knows that the people picked up were not themselves targets of FISA surveillance warrants. Nunes further claimed that the names were “unmasked,” implying that the names were properly “masked” in the original transcription, but “unmasked” at some later point.

One possibility is that the names were properly unmasked – Nunes offers only his own assessment that the names had no obvious intelligence value. The other possibility is that the names were improperly unmasked.

None of the scenarios implies in any way that President Obama “had [Trump’s] ‘wires tapped’ in Trump Tower.” That accusation was and remains a baseless lie.

First and foremost, Nunes’s own allegation is that Trump transition people were picked up “incidentally” in the course of legal, court-authorized surveillance of other people’s communications. Nunes’s allegation does not imply that anyone in the Trump transition, let alone Trump himself, was the target of surveillance.

Second, although Trump has tried to fuzz up his original accusation against Obama by saying that “wiretapping” refers to surveillance generally, his accusation was unavoidably specific that the surveillance occurred “in Trump Tower.” Nunes’s allegation explicitly related to surveillance of foreigners who were not part of the transition, and, presumably, were not in Trump Tower. (It would hardly help Trump’s case if targets of FISA surveillance warrants were using Donald Trump’s “wires” in Trump Tower.)

The Trump disinformation machine will spend the next few days furiously muddying the waters, claiming that this new information proves that the Obama Administration (no longer President Obama personally) was surveilling the Trump campaign (no longer Donald Trump personally). It is important that the mainstream media not fall into that trap.

There are other questions, though. If Devin Nunes thinks that his new information is relevant to Trump’s accusation against Obama – which is under investigation by his committee – why did Nunes share the information with the White House and not with the rest of the committee? The ranking Democrat on the committee, Adam Schiff, told MSNBC that he learned of Nunes’s allegation by watching Nunes’s press conference on TV.

Nunes indicated that he viewed the supposedly damning documents in a secure location, implying that they were shown to him by members of the intelligence community, which is part of the executive branch. Why would members of the executive branch bring to light material that allegedly supports statements by their president by showing them to a member of Congress, instead of to the President?

If the documents included names that had been improperly “unmasked,” was it legal and proper to show them to Nunes? If the committee is going to pursue leaks that occurred during the Obama Administration, in all fairness isn’t this also a leak, and shouldn’t the committee investigate it?

Most importantly, has Nunes fatally undermined the independence, integrity and credibility of the House intelligence committee’s investigation? The Trump campaign is the target of potentially the most important aspect of the investigation: whether the campaign in any way cooperated or coordinated with the Russian interference into our elections. An investigation that feeds information more quickly to its targets than to its own investigation team is not so much an investigation as it is a cover-up.

Nunes’s ability to conduct a credible investigation was already deeply suspect. He himself was a member of the Trump transition team. He has oddly insisted that his committee will not seek access to the Trump tax returns that could reveal the extent of Trump’s financial debts and obligations to Russian interests. He agreed to a Trump White House request that he speak to reporters to challenge a report about Trump campaign connections to Russia. He has declined to include former National Security Advisor Michael Flynn’s conversations with the Russian ambassador in the committee’s investigations, opining that by those conversations Flynn did our country a favor for which we should thank him, not investigate him. Nunes said that Flynn’s conversations occurred after the election, so were not relevant to the investigation. But Nunes’s allegations today explicitly concerned the Trump transition, not the Trump campaign, and therefore also post-dated the election – still, Nunes thought these allegations relevant to Trump’s claim that Obama wiretapped Trump Tower before the election.

To me, it is axiomatic that a Trump transition official cannot credibly lead an investigation into the Trump campaign. This would be true if the investigation concerned something relatively mundane, like campaign finance impropriety. But the subject of this investigation is anything but mundane. At a minimum, the investigation must determine the scope of our exposure to Russian influence over future elections, and if that means that the propriety of President Trump’s own election falls into question, so be it.

But even more fundamentally, the investigation must determine whether the campaign of one of our two major parties assisted, or even just knew about, Russian interference – whether, in short, a presidential candidate colluded with a hostile foreign power to corrupt an American presidential election. If so, this is Watergate plus treason – the most serious assault on American democracy since the Civil War.

A few Republicans have joined Democrats’ call for investigation of the Russian election interference and Trump campaign collusion by an independent, bipartisan commission along the lines of the 9/11 commission. Nunes’s actions today puts Republicans in Congress to the test – whether at the end of the day the security of our country and the integrity of our democratic institutions is ultimately more important to Republicans than the partisan advantages to be gained by continuing to downplay the Russian cyberwar against us.

  1. Wayward 1 permalink

    Thank you. I particularly liked your use of the word ‘axiomatic.’

    I still think that whatever the Russian involvement might have been, the results were more heavily skewed by the use of Interstate Crosscheck, among other means of vote suppression. Do you read Greg Palast? what are your thoughts about hisallegations?


    • Thanks for your comment, Wayward!

      My “axiomatic” reflex is probably a vestige of my math nerd persona, which fell victim to a rigorous theoretical calculus class I took my freshman year in college.

      I had not previously come across Greg Palast, but I did look him up in response to your inquiry. The Interstate Crosscheck system was certainly abused in the lead-up to the 2016 election, and reporting of those abuses lays blame on Republican state election administrators. On the one hand, I’ve seen no evidence that improper invalidation of voting by properly registered voters occurred in sufficient numbers to change the outcome of the presidential election. The same is true for other voter suppression measures, each taken on its own – like voter ID laws.

      On the other hand, each of these voter suppression measures has a partisan text and a racial subtext, and therefore each must be fought. And all of these voter suppression measures taken together may well change the outcomes of future elections.

      Republicans have successfully co-opted the narrative, and large numbers of Americans believe that Democrats cheat in elections. Democrats need to work harder on the actual facts, and more importantly, Democrats need to change the narrative to something like this: Republicans are hell-bent to suppress voter turn-out because they know they can’t win a fair election with their agenda.


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