For those of you who have been distracted by other less important matters, as of today we are officially in a constitutional crisis.
The threat to our democracy is now at DEFCON 1. To paraphrase, “Now is the time for all good men and women to come to the aid of their country.” This is not a drill.
Republicans on the House Intelligence Committee disregarded a Justice Department letter last week to Rep. Devin Nunes, the committee’s Republican chairman, from Stephen E. Boyd, an assistant attorney general, advising him it would be “extraordinarily reckless” to release the “Nunes Memo” drawing on classified information without official review.
According to the ranking minority member on the committee Rep. Adam Schiff, and the Transcript of House Intelligence Committee Meeting Regarding the Nunes Memo, the committee chairman, Devin Nunes, despite meeting with FBI Director Wray on Sunday regarding the concerns of the FBI, refused to even hear from the FBI in the committee hearing regarding their concerns for national security sources and methods (pp.2-21):
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It should be noted that this committee hearing was the first time it was disclosed to Democrats on the committee that chairman Devin Nunes and several Republican members on his committee were conducting their own investigation into the FBI and Department of Justice, something that was not approved by a vote of the committee.
More importantly, there is evidence to suggest that the “Nunes Memo” prepared by Devin Nunes and his staff was prepared in consultation with and input from the subject of the Trump-Russia investigation, the Trump White House (p.23):
Yeah, that’s not at all suspicious. You can read between the lines that this is a confirmatory “yes” — Rep. Nunes and his staff worked with the subject of a criminal investigation to “investigate the investigators” and to undermine the Trump-Russia investigation. This is obstruction of justice hiding in plain sight.
This occurred outside the normal course and scope of duties of the congressional committee and is therefore not protected by legislative privilege. In any event participating in a crime, i.e., the furtherance of a cover-up and conspiracy to obstruct justice, is not protected by the legislative privilege. Rep. Nunes and his staff, and any other participants, have exposed themselves to being charged as co-conspirators to obstruction of justice.
The FBI has continued to push back against release of the “Nunes Memo,” issuing an extraordinary warning to the White House to not release the memo. FBI Statement on HPSCI Memo:
The FBI takes seriously its obligations to the FISA Court and its compliance with procedures overseen by career professionals in the Department of Justice and the FBI. We are committed to working with the appropriate oversight entities to ensure the continuing integrity of the FISA process.
With regard to the House Intelligence Committee’s memorandum, the FBI was provided a limited opportunity to review this memo the day before the committee voted to release it. As expressed during our initial review, we have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.
The New York Times reports, F.B.I. Condemns Push to Release Secret Republican Memo:
The F.B.I. clashed publicly with President Trump for the first time on Wednesday, condemning a push by House Republicans to release a secret memo that purports to show how the bureau and the Justice Department abused their authority to obtain a warrant to spy on a former Trump campaign adviser.
“The F.B.I. was provided a limited opportunity to review this memo the day before the committee voted to release it,” the bureau said in a statement, referring to the House Intelligence Committee. “As expressed during our initial review, we have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”
The high-profile comment by the F.B.I. thrust Christopher A. Wray, the bureau’s director, into a confrontation with the president . . . Mr. Wray had pleaded in recent days at the White House to keep the document private.
Mr. Trump wants to see the memo released, telling people close to him that he believes it makes the case that F.B.I. and Justice Department officials acted inappropriately when they sought the highly classified warrant in October 2016 on the campaign adviser, Carter Page.
Democrats, who have sided with law enforcement on the matter, made a last-minute attempt to halt the process late Wednesday night when Representative Adam B. Schiff, the top Democrat on the Intelligence Committee, sent a letter to Representative Devin Nunes, its Republican chairman, charging that the Republicans had made “material changes” to the memo after voting to release it on Monday and before they sent it to the White House for review.
Those changes, Mr. Schiff argued, meant that the committee should halt the review process and vote on the new, altered memo — a proposition that could potentially take days.
Republicans quickly rejected Mr. Schiff’s charge, saying that it was a “strange attempt to thwart publication of the memo.”
“The committee minority is now complaining about minor edits to the memo, including grammatical fixes and two edits requested by the F.B.I. and by the minority themselves,” a statement from Mr. Nunes’s spokesman, Jack Langer, said. “The vote to release the memo was absolutely procedurally sound, and in accordance with House and committee rules.”
It was not immediately clear whether Mr. Schiff’s claim would have any effect on the outcome.
Rep. Adam Schiff writes in an op-ed today at the Washington Post, Rep. Nunes’s memo crosses a dangerous line (excerpt):
As multiple investigations work to unearth the full truth, the president has lashed out with Nixonian ferocity at the Justice Department, the FBI, congressional investigators and the media.
However, unlike President Richard Nixon, who waged his Watergate fight without the same kind of vocal allies, Trump not only has an entire media ecosystem dedicated to shielding him from accountability but also senior Republicans on the Hill who have cast aside their duty to uphold the law and perform oversight in favor of protecting the Trump presidency — no matter the cost. Nunes may have wielded the committee gavel here, but the ultimate responsibility lies with House Speaker Paul D. Ryan (R-Wis.), who lacked the courage to stop him.
Ryan, who has never served on the Intelligence Committee, seems not to understand the central bargain underpinning the creation of the intelligence committees after Watergate. In exchange for the intelligence community’s willingness to reveal closely guarded national secrets to a select group of members and staff for the purposes of oversight, the committees and the congressional leadership pledged to handle that information responsibly and without regard to politics.
That contract has now been spectacularly broken by the creation of a partisan memo that misrepresents highly classified information that will never be made public. Intelligence agencies can no longer be confident that material they provide the committee will not be repurposed and manipulated for reasons having nothing to do with national security. As a result, they will be far more reluctant to share their secrets with us in the future. Moreover, sources of information that the agencies rely upon may dry up, since they can no longer count on secrecy when the political winds are blowing. This is a grave cost for short-term political gain.
The president’s stance on the memo puts him at odds with much of his national security establishment. The Justice Department has warned repeatedly that the memo, prepared by Republican staff members on the House Intelligence Committee, is misleading and that its release would set a bad precedent for making government secrets public, including sensitive sources of information and methods of intelligence gathering. F.B.I. officials have said privately that the president is prioritizing politics over national security and is putting the bureau’s reputation at risk.
Rep. Devin Nunes, however, is doubling-down on his attacks on the FBI:
Nunes said in a statement: “Having stonewalled Congress’ demands for information for nearly a year, it’s no surprise to see the FBI and DOJ issue spurious objections to allowing the American people to see information related to surveillance abuses at these agencies. The FBI is intimately familiar with ‘material omissions’ with respect to their presentations to both Congress and the courts, and they are welcome to make public, to the greatest extent possible, all the information they have on these abuses.”
FBI Director Wray had strongly objected to the move to release the memo and was allowed to review it only on Sunday, after Mr. Nunes relented. Mr. Wray made a last-ditch effort on Monday, going to the White House with the deputy attorney general, Rod J. Rosenstein, to try to persuade the White House to stop the release of the memo. They spoke to John F. Kelly, the White House chief of staff, but were unsuccessful.
Mr. Rosenstein was also asked by the president last month whether he was “on my team,” according to an official briefed on the exchange. Mr. Rosenstein appeared surprised but responded affirmatively, according to CNN, which first reported the encounter.
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Mr. Trump was eager to see the document released. Even as the White House’s review was continuing, Trump was caught on a hot mic telling Rep. Jeff Duncan (R-S.C.), who had asked him to release the memo,“Oh, yeah, oh, don’t worry, one hundred percent.” “Can you imagine that?”
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During his confirmation hearing, Mr. Wray foreshadowed Wednesday’s confrontation. He told senators that he was no pushover and would resist political interference.
The “Nunes Memo” is reportedly to be released today. You can bet the Trump White House will send the first copy to FAUX News (aka Trump TV) so his Minister of GOPropaganda, Sean Hannity, gets it for an “exclusive.”
This puts FBI Director Wray in a quandary: the only proper course of action is for him to resign in protest of the extraordinary actions of the President and the House Intelligence Committee. But will he? With FBI statement on memo, Christopher Wray could now be in the president’s crosshairs:
The showdown over the memo could be a defining moment for Wray — threatening to alienate him from the president as he demonstrates his independence. Trump already fired James B. Comey after the FBI director would not give him a hard vow of loyalty, and he has toyed with ousting Attorney General Jeff Sessions, despite Sessions’s vigorous implementation of the president’s agenda.
Trump also is said to have recently suggested firing Deputy Attorney General Rod J. Rosenstein, who, because Sessions recused himself, is supervising special counsel Robert S. Mueller III’s investigation into the Trump campaign’s contact with agents of the Russian government. According to a person familiar with his comments, the president has told advisers the memo might make people realize how the FBI and Mueller are biased against him, and that could give him reason to force Rosenstein out.
Friends and supporters of Wray say he is a cautious decision-maker who attempts to weigh all the possible consequences of his actions before he commits to doing anything — and probably would have carefully considered publicly criticizing the memo before doing so.
Wray, they say, also generally shirks the spotlight but is not afraid of making a public stand if he thinks that is the proper course.
“I’m sure he would love to serve the president and have a good working relationship with him, but he’s going to do what he thinks is right,” said Joe Robuck, a retired FBI agent and friend of Wray, adding, “He’s not going to care about whether it puts his job in jeopardy.”
Norman Eisen, a senior fellow at the Brookings Institution and the chairman of Citizens for Responsibility and Ethics in Washington (CREW) Caroline Fredrickson, president of the American Constitution Society (ACS), and Noah Bookbinder, the executive director of CREW, write at POLITICO, Trump’s Saturday Night Massacre Is Happening Right Before Our Eyes (excerpt):
Let’s be clear about what’s happening here: This memo is the latest escalation in an eight-month effort to tarnish the Russia investigation that might be the most significant smear campaign against the executive branch since Joe McCarthy—only here, the effort is being led by the head of that branch himself. As the New York Times reported, the Nunes memo seems like a dagger aimed by President Trump at Deputy Attorney General Rod Rosenstein, who is supervising the Russia probe for the Justice Department.
After a lengthy recitation of the facts, the authors write:
That brings us at last to Representative Nunes. His contribution to all of this is a memo that claims the FBI improperly obtained authorization to conduct surveillance on Trump campaign advisor Carter Page. Democrats on the committee unanimously opposed its release, asserting its claims of wrongdoing are unfounded and out of context and its release endangers our national security. Indeed, Trump’s own Justice Department objected to its release as “extraordinarily reckless,” and his handpicked FBI director reportedly trudged to the White House to voice his firm objections—before his bureau’s formal objections were made public on Wednesday. Just like the other smears that preceded it, this latest one completely lacks credibility.
All this has built steadily toward a crisis for American democracy—a Saturday Night Massacre in slow motion. Press reports suggest the president may be contemplating using the memo to dismiss Rosenstein. That matters: If the president were to use his powers to insert someone lacking independence, that person could throttle the special counsel.
That move would, however, risk deepening the president’s obstruction of justice liability, and that of those around him who are involved in the decision. After all, firing Comey on dubious grounds with the alleged intent to hamper the Russia investigation led to an obstruction investigation. Cashiering Rosenstein would offer a matching bookend. That is particularly so in light of another startling report today: that the president sought details about the Russia investigation from Rosenstein, then asked him, “Are you on my team?” This echoes Trump’s demand for loyalty from Comey that helped kick off the obstruction investigation.
Rosenstein’s failure to provide sufficient answers has put his head on the chopping block, with the president reportedly preparing to use the memo as a pretext. This targeting of the deputy attorney general also makes clear the larger motivations of the smear campaign. It is plainly obstructive of the Russia investigation. From Trump on down, the hope seems to be that the best defense will prove to be a good offense. This is exactly the playbook Trump used to run when he was a slick up-and-coming Manhattan developer taking advice from the late Roy Cohn: attack, attack attack. But this is the presidency, and Trump has failed to learn the lesson of Cohn’s previous client and patron, Joe McCarthy. It’s not going to go the way he thinks.
In Watergate, there were enough patriotic Republicans who took their oath of office to defend the Constitution seriously enough to oppose their own president who was engaged in a criminal conspiracy.
In Trump’s authoritarian GOP, we now have the spectacle of Republican members of Congress actively engaged in a cover-up and aiding and abetting a conspiracy to obstruct justice.
Weep for America.