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What To Make Of Republicans’ Decision To Release The ‘Nunes Memo’

The House Intelligence Committee’s vote on Monday night to release the so-called Nunes memo, which is expected to criticize the Department of Justice’s handling of the Russia investigation, is the latest illustration that some key Republicans and President Trump are prepared to break with traditional norms to work in opposition to the probe. But the memo probably doesn’t matter that much for the actual investigation, which is the bigger story and remains a threat to Trump’s presidency.

The push to release the memo, which relies on classified information for its findings, is the most recent in a series of moves by congressional Republicans and Trump to break with traditional practices of letting the Justice Department and FBI operate mostly independently on investigative matters.1 Over the last week, reports have emerged that:

  1. Trump asked then-FBI Deputy Director Andrew McCabe whom he had voted for in the 2016 presidential election, a major breach of protocol, before deciding not to promote him into the top position at the bureau (McCabe was serving in a non-partisan role at the FBI, and civil servants in the U.S. government are generally not supposed to discuss their political leanings).2
  2. Trump reportedly ordered the firing of special counsel Robert Mueller, leading to a threat from White House Counsel Don McGahn that he would resign if Mueller were terminated.
  3. FBI Director Christopher Wray reportedly considered resigning over a demand from Attorney General Jeff Sessions to dump McCabe from the No. 2 post at the FBI. (McCabe resigned Monday, but that appears not to be directly related to Sessions’ request, but Wray himself pushing McCabe to step down.
  4. Trump and White House Chief of Staff John Kelly have reportedly spoken with Wray and Sessions recently about the various controversies surrounding both the Russia investigation and the Clinton e-mail investigation.

Whew.

Then on Monday night, we had the party-line vote by the GOP-led House Intelligence Committee to release the Nunes memo (named for the committee’s chairman, GOP Rep. Devin Nunes). A Trump appointee at the Justice Department publicly urged the committee not to release this memo, saying that doing so without giving the FBI an opportunity to review the material would be “extraordinarily reckless.”

According to the vote, the memo will become public in five days unless Trump objects, which seems unlikely. The memo’s contents have not been disclosed, but it’s likely to raise questions about how the Department of Justice obtained permission from a judge to start surveillance of people involved in the 2016 Trump campaign.

Whether legal or proper or “normal” or not, the actions by Trump and some congressional Republicans seem to be clear attempts to raise doubts about the need and credibility of the broader investigation into Russian interference in the election, with the memo the latest, and perhaps most substantive, item to do so.

This matters. Politically, these moves could have the effect of undermining confidence in the Russia investigation among the public, particularly those who voted for Trump in 2016. Substantively, the steps taken by Trump have the potential to limit the ability of investigative agencies like the FBI to look into the conduct of Trump or future presidents.

It has become even clearer in the last week is that Trump and his allies on Capitol Hill, particularly Nunes, do not feel that there should be an investigation of the president and his allies for matters relating to Russia’s interference in the 2016 election. In fact, Trump’s attitude suggests he does not believe any investigation should be targeting him since he is the president and in theory in charge of the executive branch, including the Justice Department.

But here’s the thing: The Russia investigation is already happening and there are no signs it is ending, despite Trump’s frustrations with it. Trump has not actually fired Mueller; Deputy Attorney General Rod Rosenstein, who is overseeing the investigation; or Sessions, who recused himself from the investigation and therefore could potentially be replaced by a new attorney general who could insert herself more directly into the Russia matter. (The House memo reportedly portrays Rosenstein negatively, but firing him would still be a huge escalation of this conflict by Trump.)

In fact, Mueller reportedly wants Trump to testify in the probe. That’s a dangerous prospect for the president. If he declines an interview, that will look bad, particularly since Trump has proclaimed for months he has nothing to hide. If Trump does the interview, a president who regularly makes false claims opens himself up to potential perjury charges.

Ultimately, Trump and his allies can raise as many questions as they want about the Russia probe, but Mueller still has power as long as he remains the special counsel. Mueller has already indicted four people who worked on Trump’s campaign. He seems to be investigating Trump himself. And in reality, even if Trump fired Mueller, it’s likely the Russia investigation would continue in some form, and that there would be even more political attention on the question of why exactly Trump kept firing people who were investigating him on Russia and 2016.

So the memo matters. But Mueller matters much more.

Footnotes

  1. The Justice Department is part of the executive branch but has historically operated quasi-independently, with some notable exceptions.

  2. Trump has suggested he does not like McCabe because McCabe’s wife received money for a state senate campaign from a political committee affiliated with ta close ally of Hillary Clinton. But McCabe is also reportedly one of the people ex-FBI Director James Comey confided in after Comey’s meetings with Trump that resulted in Comey’s dismissal and the special counsel appointment. So McCabe is a potential witness against Trump if the president is being investigated by Mueller for obstruction of justice around the circumstances of the Comey firing and other Russia-related matters, as has been reported.

Perry Bacon Jr. is a senior writer for FiveThirtyEight.

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