The President's Power to Hide Secret Details About the Russia Investigation

President Trump has been receiving classified information about the Russia investigation from the House Intelligence Committee as he reviews and declassifies evidence being used in a probe that could implicate him and his campaign team, raising concerns about a potential conflict of interest.

In their attempts to either chide or defend the Justice Department’s handling of the investigation, the House panel’s majority and minority members have written two separate memos describing a highly classified application submitted by the FBI to obtain a surveillance warrant targeting early Trump campaign adviser Carter Page. The Republicans’ memo claims the FBI misled the Foreign Intelligence Surveillance Court when applying for a warrant in October 2016 to surveil Page. The Democrats’ memo insists the bureau acted properly. 

The memos were sent to the White House to declassify, in effect putting Trump, who is a subject of the ongoing investigation, in charge of evidence that could potentially be used against him—further blurring a line between the White House and the Justice Department that previous administrations have been wary of crossing.

“The situation is, as far as I know, unprecedented,” said Paul Rosenzweig, a former Department of Homeland Security official who founded Red Branch Consulting and serves as a senior fellow at the conservative R Street Institute. “Never before has a president been tied to a FISA warrant application. In fact, as far as I know, no president has ever been tied to any warrant application—not FISA, not a search warrant and not a Title III wiretap. So this is unique.”

Trump opted to declassify the Nunes memo, but sent the Democrats’ rebuttal back to the panel for further redactions.

During a congressional hearing on Tuesday, Democratic Senator Kamala Harris asked the FBI Director Chris Wray whether Trump’s role in all this presents a conflict of interest.

“Do you believe there is an actual—or at least the appearance of—a conflict of interest when the president is put in charge of declassifying information that could complicate an ongoing investigation into his own campaign?” Harris asked.

Wray replied that it was “the president’s responsibility” to “object or not to declassification,” and that “legally” Trump does have the ability to declassify information at his discretion. Asked whether he thought Trump “should recuse himself from reviewing and declassifying sensitive FBI material related to this investigation,” however, Wray put the onus on White House counsel Don McGahn.

“I think recusal questions are something I would encourage the president to talk to White House counsel about,” Wray said.

David Kris, a FISA expert who served as the assistant attorney general for the DOJ’s National Security Division, told me that recusal questions, especially as they relate to the commander-in-chief, are complicated.

“For example, you can’t easily cut off the president from all intelligence about Russia, or even Russian efforts to influence our elections or governmental policies,” he said. But with respect to criminal investigations, he warned, Trump should be wary of repeating Richard Nixon’s mistakes.
“Nixon showed us that level of intimacy between politics and law enforcement with his infamous ‘enemies list,’ which outlined ways to ‘use the available federal machinery,’ like IRS audits, ‘to screw our political enemies,’” Kris said. “Since then, every presidential administration, from Carter to Trump, has adopted policies limiting interactions between the White House and the Justice Department to protect the independence of prosecutorial decisions.”

Frank Montoya Jr., a former FBI special agent who retired in 2016 after more than a decade overseeing the FBI’s national security investigations and operations, was unequivocal: “Trump should not be reviewing this information.”

“Previous administrations, post Nixon, have gone to great lengths to distance themselves from investigations involving staff, or potentially themselves,” Montoya told me.

In probes like Iran-Contra under Ronald Reagan or the Valerie Plame leak investigation under George W. Bush, Montoya said, “the executive branch maintained a hands-off approach because of concerns that it could be perceived as obstruction of justice, or abuse of power and undue influence in a legitimate investigation.”

It is unclear whether Trump has considered recusing himself or spoken to McGahn about it. Neither McGahn nor Trump’s lawyers returned requests for comment. Montoya agreed with Wray, however, that this is a conversation McGahn should have with Trump.

“Put the onus where it belongs,” Montoya said. “On the White House counsel....at least as the first line of defense in upholding the rules. It also reflected the reality that Trump is pushing boundaries that shouldn’t be pushed.”

It wouldn’t be the first time Trump has attempted to control or influence the Justice Department. His chief of staff, John Kelly, chastised top DOJ officials after they sent a letter to Nunes urging him not to release the Republicans’ memo, and his firing of former FBI Director James Comey was widely seen as an attempt to stymie the Russia probe (which he later acknowledged had been on his mind when he did it).

“No police investigator in America would give a witness or a suspect their evidence file before asking them questions,” said Congressman Eric Swalwell, a California Democrat  who now sits on the House Intelligence Committee. “In this case, the Republicans have already shown a willingness to show the president and his counsel, who is also a potential witness, evidence in this case. The president should be forbidden from seeing any of the evidence in this case until it is closed.”

Asked whether the Democrats had exacerbated the issue by providing Trump with a rebuttal memo that is arguably more expansive than the Republicans’, Swalwell said the minority’s memo “only touches on what the Republicans have already disclosed to the White House, while putting it in better context.”

Swalwell acknowledged, however, that “this wasn’t a position we wanted to be put in.”

“Ideally, would you turn over any evidence at all to a potential suspect or witness in a case? No,” Swalwell said. “But then you also risk the public losing faith in the FBI. So it’s a ‘damned if you do, damned if you don’t’ situation.”