Keeping Devin Nunes out of the game

In early April, news reports were filled with word that House Intelligence Committee Chairman Devin Nunes had recused himself from the committee’s Russia investigation. Outside activist groups accused Nunes of revealing classified information, and the House Ethics Committee decided to look into the matter. Nunes was forced to step aside from the Russia probe while the ethics watchdogs worked.

Now, nearly four months later, the committee is still working, with no end in sight.

It’s been an unusual investigation from the beginning. The House Intelligence Committee has nonpartisan staff to watch members for any possible disclosures of classified information. If a member is thought to have revealed something classified — it’s usually inadvertent and a minor matter — the staff can bring it to his or her attention, and the matter is usually handled inside the committee.

In fact, it is rare for an accusation of unauthorized disclosure to make it to the Ethics Committee. “It is not unprecedented, but the number of cases that are reported or publicly known are fairly limited,” said Scott Horton, a Columbia University law lecturer who has studied the topic. “The treatment of the cases is uneven. In several high-profile cases, the case was opened and studied, but no action was taken.”

When Horton testified before a Senate Judiciary subcommittee last December, running down a list of examples, the most recent case of the House Ethics Committee looking at alleged unauthorized disclosure of classified information was a 1995 case in which the committee investigated then-Rep. Robert Torricelli for allegedly releasing classified information about the CIA in Guatemala. The committee took no action.

But now Nunes is under Ethics Committee investigation. The probe commenced after three left-leaning activist groups, MoveOn.org, Democracy 21, and Citizens for Responsibility and Ethics in Washington, asked the committee “to investigate whether Nunes disclosed classified information,” according to the CREW website.

Nunes denied the charges and attributed them to the activists’ campaign to derail any investigation into alleged Obama White House misuse of intelligence. Nevertheless, “despite the baselessness of the charges,” in the words of his statement, Nunes stepped aside from the Russia probe on April 6.

Now, as the investigation finishes its fourth month, a number of Republicans on the Intelligence Committee are becoming frustrated. As they see it, there’s nothing to the charge, but Democrats have the ability to stretch out the Ethics Committee probe — unlike other committees, Ethics is divided equally between Republicans and Democrats — in order to keep Nunes out of the Russia investigation.

“I don’t think there is anyone on the (intelligence) committee who thinks Devin did anything inappropriate,” said Rep. Chris Stewart, a member of the Intelligence Committee, in an interview last week. “We’re so frustrated with the ethics process that I’ve been encouraging him to get back in the seat.”

“How it has been handled has been very controversial,” said another Intel Committee member in a text exchange. “Democrats slow-walking the ethics inquiry to keep (Nunes) sidelined.”

Tom Rust, the Ethics Committee staff director and chief counsel, declined to comment on the case.

Now, as the Russia case continues to dominate public attention, the House investigation is going largely without its chairman, who has been pushed to the side by an unusual investigation that Republicans believe is being extended for the purpose of keeping the chairman away from the Russia affair. And there is no idea of when that situation might change.

But if the history cited by Scott Horton is any prediction, the Ethics Committee will end up doing nothing in the Nunes affair. On the other hand, that is not really the point. The point, at the moment, is for the committee to keep the matter going so that Nunes will have to stay on the sidelines.

And that leads to the question of what Nunes will do now. The first sentence of this article noted that news reports in April said Nunes had “recused” himself from the Russia matter. But Nunes says he did not recuse himself — that word has a specific legal meaning — but rather stepped aside from leading the Russia investigation for a while. That meant Nunes not only remained chairman but has also been able to keep up with the Russia probe.

“I never recused myself,” Nunes told a Fresno, California radio station in mid-June. “What happened was, the media began this narrative that I had recused myself when in fact all I said was hey, I’m just going to temporarily step aside from leading this.” At another point in the same appearance, Nunes said he was “still involved in the investigation, just not leading it.”

A month earlier, in May, in an interview with Fox News, Nunes said he is still informed on things that are happening in the Russia affair. “I’m still read into everything,” Nunes said.

What if the Ethics Committee probe goes on indefinitely? At some point, it seems possible that Nunes and the Republicans on the Intelligence Committee will say enough is enough. What will happen then is anybody’s guess.