A top former Obama administration lawyer just explained how Republican Congressman Devin Nunes (R-CA) could face criminal charges for the publicity stunt memo he released late last month.
Norm Eisen and two other distinguished attorneys explained in a New York Times column that Nunes’ release of a memo filled with top secret information could be more than just a political abuse of his official position.
Last week, former Watergate whistleblower John Dean opined that Nunes’ memo was similar to a propaganda document for which he was convicted.
That’s why GOP lawmakers should be concerned about cooperating with Rep. Nunes, because as Eisen points out, they could become part of an obstruction of justice conspiracy between the White House and the Republican Chairman of the House Intel panel.
Given Mr. Nunes’s own close relations to the White House as a former member of the executive committee of the Trump transition team, and his previous history conferring with White House officials on matters under investigation by his committee, it is fair to surmise that his staff, perhaps at his direction, may have coordinated the memo with the White House.
Such conduct could expose Mr. Nunes and his staff to liability for conspiracy to obstruct justice.
Endeavoring to stop an investigation, if done with corrupt intent, may constitute obstruction of justice. Plotting to assist such action may be conspiracy to obstruct justice.
Norm Eisen knows this area of the law well, having served as President Obama’s ethics lawyer in the White House and now as the Chairman of the non-profit watchdog group C.R.E.W.
It’s pretty unusual that a criminal investigation would ensnare a Congressman for official work, but there are case law precedents that draw the line between legislative process and political activities according to Eisen:
Normally, what is called “speech or debate” immunity would provide a strong bulwark against any such liability for Mr. Nunes or his staff.
The Constitution provides that senators and representatives “shall not be questioned in any other Place” for “any Speech or Debate in either House,” immunizing members of Congress from criminal prosecution and civil lawsuits that concern the legislative process.
In this case, however, Mr. Nunes and company may have ranged so far afield that those protections no longer apply.
Under the clause, mere peripheral connection to legislative acts cannot serve as a fig leaf to shield criminal conduct.
The clause does not protect activities that courts consider “political,” such as communicating with the executive branch on behalf of constituents, issuing a newsletter or news release or speaking outside of Congress.
The most famous example involves Alaska Senator Mike Gravel and his staff, who were involved in the release and publication of the Pentagon Papers.
The courts found that the speech or debate protections applied to Senator Gravel’s actions in entering the documents into the record of a subcommittee hearing, but did not apply to actions of the senator and his staff in arranging private publication following the hearing.
The reason: The latter conduct was “in no way essential to the deliberations of the Senate.”
Devin Nunes has even more reasons to wish for an end to the Special Counsel’s probe than solely being on the Trump Transition team.
A lengthy report this weekend exposed the California Republican has a long relationship with disgraced former Trump NSA Gen. Michael Flynn.
Nunes’ told Newsweek that he was close with the convicted former Trump official throughout the transition:
Nunes and Flynn evidently maintained close ties through the election and beyond, even as Flynn’s world was beginning to unravel with questions about his payments from Kremlin mouthpiece Russia Today, secret talks with former Russian ambassador Sergey Kislyak and a confidential lobbying contract with a law firm tied to Turkish strongman Recep Tayyip Erdogan.
“I talk to Flynn virtually everyday, if not multiple times a day,” Nunes told me in the late December 2016 interview. “Seldom there’s a day that goes by that I don’t talk to Flynn, and especially right after the campaign, directly.”
The Republican Congressman even attended a meeting with Flynn’s Turkish benefactors months after the General’s secret lobbying for the autocratic Erdogan government became national news.
Rep. Nunes has tremendous personal exposure to the Trump Russia criminal probe due to his position on the Trump Transition team and long relationship with General Flynn.
If the former Obama administration White House counsel is correct, then Devin Nunes could be swept up in one of Special Counsel Mueller’s indictments for orchestrating a very public cover-up of the Transition Team’s activities.