In Defense of Devin Nunes

One of the strangest turns in the story of Russia and the Trump campaign has been the recent outrage from Democrats over politicization of the investigation.

This all centers on Chairman Devin Nunes, the Republican who is leading the House Intelligence Committee's investigation. He was an adviser to the Trump presidential transition. The White House asked him last month to talk to a reporter to rebut news stories that alleged Trump associates had many contacts with Russian intelligence officers. On Wednesday, Nunes briefed the president about new information he had regarding dozens of widely disseminated intelligence reports on the Trump transition. He did this before he briefed his committee's Democrats.

All of this has prompted an outbreak of high dudgeon from the party of Clinton. Representative Adam Schiff, the ranking Democrat on the committee, says Nunes must choose whether he wants to lead a credible investigation or be a surrogate of the Trump White House. House Minority Leader Nancy Pelosi says Nunes is a "stooge."

Nunes on Thursday gave a half apology for all of this to the minority members of his committee. He told me: "The bottom line is I know it hurt some people's feelings, but I had a judgment call to make and I did what I felt was right. The commitment remains to keep the committee bipartisan." He added, "I appreciate their concerns, but I had to do what I had to do." Translation: The chairman loves your passion, Democrats.

So why would Nunes brief President Donald Trump before Schiff? The answer is that the entire Russia-Trump investigation by Congress from the beginning has been a partisan fight. Leaks about who may be a target of the probe, press conferences on "what we know so far," pushback from the White House and other Republicans — it's all evidence that the Trump-Russia probe is a political football.

So both parties have tried to spin the investigation for partisan advantage. Take the latest from Schiff. He told MSNBC on Wednesday that there is now "more than circumstantial evidence" of collusion between Russia and Trump associates, whatever that means. If this investigation was really about finding the facts wherever they lead, then what purpose does it serve to offer such a judgment in an inquiry that is likely to twist and turn if it follows the pattern of past counter-intelligence probes? Investigators have an interest in closely guarding their findings until they are ready to present their conclusion. To be sure, Nunes in this respect is no better. He has assured the press that there is zero evidence of collusion at this point, which places him ahead of his own probe.

In reality neither the House nor the Senate committee is equipped to find out what really happened. They don't have the staff or expertise to hunt for spies or monitor the communications of suspected collaborators with Russia. The FBI and the intelligence community are in such a position. The job of the House and Senate panels is to perform oversight of the intelligence community that is doing the investigation.

In this respect, Nunes is doing his job. There has been a longstanding concern that communications picked up incidentally of U.S. citizens can be shared widely within the national security state, effectively short circuiting the strict rules for obtaining a wiretap from a court. The intelligence community is supposed to expunge the identities and identifying traits of U.S. citizens if not pertinent for foreign intelligence collection. But the track record is mixed.

Nunes and Schiff worked closely on this issue last year following an explosive Wall Street Journal story about how the identities of members of Congress and Jewish organizations were not properly masked in taps on the communications of the Israeli prime minister and his top aides. The two of them worked out a new protocol that would inform the chairman and ranking members as well as other congressional leaders when such incidental collection was picked up.

Something like this appears to have happened with regard to Trump advisers after the election and before Trump's inauguration. As Nunes told reporters Wednesday, the collection of the information appears to be legal. Dozens of reports were generated, including details of communications about and between Trump transition officials, and they were widely disseminated inside the intelligence community. Nunes said none of these intelligence reports were about Russia.

That in and of itself is not necessarily a scandal. As Tim Edgar, who served in President Barack Obama's first term as director of privacy and civil liberties at the White House, told me, the names of U.S. persons can sometimes appropriately be unmasked. "If he is saying there was a bunch of information overheard in intelligence reports and it wasn't necessary for their names to be included for foreign intelligence purposes, that is a violation of intelligence oversight rules designed to protect the constitutional rights of Americans," he said. "That is the purpose of the House Intelligence Committee."

How this story will turn out depends on what the FBI eventually digs up on Trump and Russia. It could be that there was a very good reason to distribute intelligence picked up by government eavesdroppers about the Trump transition team, if it turns out there was real coordination between Trump's associates and Russia on interfering in the election. What other ties exist?

But it's also possible that all of this is just smoke and no fire, to borrow the phrase of former acting CIA director and Hillary Clinton campaign surrogate Michael Morell. In that case, it's very troubling that Obama's intelligence bureaucracy appears to have been distributing intelligence reports about his successor's team. We won't know unless Democrats and Republicans follow those facts wherever they lead.

Eli Lake is a Bloomberg View columnist. He was the senior national security correspondent for the Daily Beast and covered national security and intelligence for the Washington Times, the New York Sun, and UPI. To read more of his reports, Go Here Now.