Trump’s conduct on Nunes memo unethical
By MATTHEW MILLER | Special to The Washington Post | Published: February 2, 2018
President Donald Trump’s decision to allow House Intelligence Committee Chairman Devin Nunes’ memo alleging wrongdoing at the Justice Department to be released, combined with his ill-advised intervention with the Justice Department over the issue, represents the most unethical — and potentially illegal — action he has taken since he fired FBI Director James Comey. And like the Comey decision, it may now feature prominently in the obstruction-of-justice investigation dogging Trump’s White House.
What makes the president’s involvement so fundamentally inappropriate is that the Nunes memo cannot be disentwined from the active, ongoing investigation into the president and his 2016 campaign. The memo’s accusations are drawn from a secret court application by the Justice Department for permission to surveil Trump campaign official Carter Page, as well as a subsequent renewal that was authorized by Deputy Attorney General Rod Rosenstein. Because of this entanglement, the White House should have taken the traditional hands-off stance of previous administrations and left the Justice Department to handle the matter independently.
Instead, the president directed his chief of staff, John Kelly, to castigate Justice Department officials for sending Nunes a letter claiming the memo’s public release could compromise the Russia investigation or jeopardize national security by revealing classified secrets. That intervention — the White House chief of staff pressuring the Justice Department over something the department believed could undermine an active investigation into the president himself — crossed the brightest of red lines.
In addition to compromising the Justice Department’s investigative interests, the White House was also in no position to judge whether release of the memo would jeopardize national security. It has almost certainly never seen the underlying surveillance applications on which it is based. Because the president, like Page, is a subject of that investigation, it would be obviously inappropriate for the Justice Department to provide the application, and all of the secret investigative material it contains, to the White House. Instead, Rosenstein and FBI Director Christopher Wray privately warned the White House that the memo’s release could harm national security, with Wray taking the dramatic step of then issuing a public warning. Trump’s decision to move ahead anyway shows a stunning lack of concern for the executive branch’s traditional national security prerogatives.
Finally, the president’s motives matter here. The Washington Post has reported that the president hopes the memo will provide him the grounds he needs to fire Rosenstein. While there would be a certain irony in Rosenstein being fired over a pretextual memo, given his authorship of the memo that supplied the president’s initial public rationale for firing Comey, his dismissal would put special counsel Robert Mueller’s investigation in great peril.
The president no doubt understands this. With Rosenstein gone, Trump could appoint a new acting deputy attorney general, who might not be as supportive of Mueller as Rosenstein has been. That new official would not need to fire Mueller. He or she could decline to approve new areas of inquiry, reject proposed indictments and even direct the special counsel to stop seeking an interview with the president.
Here lies the potential illegality in the White House’s intervention. The special counsel is already examining the long series of troubling interactions between the president and federal law enforcement officials. If it is true that Trump acted to secure the memo’s release as yet another way to thwart the special counsel’s investigation, then he will have provided Mueller with another critical piece of evidence that he has committed obstruction of justice.
And Mueller may find more evidence than is yet publicly known. Nunes has declined to answer questions from both his colleagues and reporters about whether his staff worked on the memo with anyone in the White House, and the White House press secretary has only declared that she is not aware of any White House involvement. Of course, there is precedent for Nunes hatching plans in concert with the White House. His previous foray into these waters, last year’s “unmasking” charade, fell apart when it emerged that he had developed that misleading account of classified activities after being briefed by White House staffers.
Trump could have chosen another path. Once the Intelligence Committee voted to release the memo, a more responsible president would have delegated the decision about whether to declassify it to other officials in the executive branch — perhaps the director of national intelligence or the Justice Department’s inspector general — who could have made the call free from the taint the president’s status as a subject of the underlying investigation provides.
Instead, Trump simply made the decision himself and handed his allies on Capitol Hill and in conservative media the latest weapon with which to unfairly bludgeon the Justice Department and undermine the investigation into the president and his campaign. For months, legal scholars have debated whether the president’s actions behind closed doors constitute obstruction of justice. Now Trump is doing it out in the open for all to see.
Matthew Miller was director of the Justice Department’s public affairs office from 2009 to 2011.