Beware Coverage of the House Intelligence Committee’s ‘Unmasking’ Investigation

For some months now, the House Intelligence Committee, led by Rep. Devin Nunes, has been investigating whether there were political motivations to the the Obama White House’s “unmasking” of American citizens who were named in intelligence reports. Nunes has previously stated that he has seen evidence that this occurred from, among others, National Security Adviser Susan Rice. Nunes received quite a bit of criticism for the way he obtained and presented this evidence. Nunes subsequently recused himself from the Trump-Russia investigation in the House, though not from the broader congressional investigation into the possible improper handling of intelligence by Obama administration officials.

However, it’s worth noting that Rice doesn’t exactly deny that she was involved in unmasking after the fact, and she apparently lied about the unmasking issue when she was asked about it directly on television just a few weeks before Nunes’s revelations. (Her credibility in general is not riding high this year.) And though it is unrelated to the Nunes revelations, it’s also worth noting that the leaking of the unmasked identity of former Trump National Security Adviser Michael Flynn, is a documented crime that did occur as a result of someone in Obama administration.

With that in mind, here is a report from Reuters on the status of the House Intelligence Committee investigation. There are no words to describe how jaundiced and credulous this reporting is:

Republican lawmaker Devin Nunes’ investigation into whether Obama administration officials used classified intelligence reports to discredit Donald Trump’s 2016 campaign team could backfire on the congressman – and the president, sources familiar with the reports said. The reports contain no evidence that any aides to former Democratic President Barack Obama acted improperly, the sources said, but they do indicate some Trump associates may have violated an obscure 1799 law, the Logan Act, which prohibits unauthorized U.S. citizens from negotiating with a foreign government that has a dispute with the United States.

There are two basic problems with this criticism of Nunes, both of which I have elaborated on before. The first is that whether or not it was legal to unmask American citizens being spied on incidentally and share their identities widely within the government, it is definitely a troubling abuse of power if the information is used for domestic, partisan reasons. Saying there’s no evidence anyone “acted improperly” is a largely political question, and one that is best answered by public examination of the evidence. Journalists using anonymous sources to dismiss an incomplete investigation isn’t illuminating or helpful. As I noted when CNN was pushing this dubious argument back in April, “It doesn’t help that CNN’s thesis—that Rice did the unmasking, but it’s perfectly normal—just happens to be the exact talking point that former Obama administration officials were pushing when the [unmasking] story broke.”

Secondly, if you had any doubt that Reuters’ characterization of the House’s investigation is untrustworthy, the fact the story mentions the Logan Act tells you all you need to know. Credulous journalists keep repeating this talking point. It is utter garbage:

Let’s talk about the Logan Act for a bit. Or rather, let’s talk about why serious people don’t talk about the Logan Act. The Logan Act is to national security laws about what phrenology is to medical science. Since its passage in 1799, no one’s ever been convicted under the Logan Act, and just about every legal expert agrees it is wildly unconstitutional and runs counter to the First Amendment. George Logan, the senator whose actions motivated the passage of the law, was never even charged under it. Seriously, the only man charged under the law was a Kentucky farmer who wrote a newspaper article in 1803 about American territories allying with France—and even he was never prosecuted. The fact the Logan Act is still on the books is an accident of history, and to the extent it has been discussed in modern times, it’s almost exclusively invoked by cranks and the conspiracy-minded. Most recently, it’s become a dog-whistle bugaboo for the fever-swamps of left. There was a minor flap in 2015 where liberal activists argued that when Sen. Tom Cotton and 46 other senators signed a letter criticizing the Iran deal, they were guilty of Logan Act violations. Again, under the Logan Act, anyone who writes a newspaper article about foreign policy is potentially guilty of violating it.

Further, the Logan Act is another talking point that is clearly being shopped to journalists by former Obama national security officials in spin mode. The New York Times reported in February that “Obama advisers” were worried about Flynn violating the Logan Act, which was clearly an attempt to discredit Flynn by making accusations of his misdeeds seem more trumped up then they were.

Now it is entirely possible that the investigation by Nunes and the House Intelligence Committee will amount to bupkis. But clearly there is a coordinated effort to discredit this investigation before it’s finished, and it’s a remarkably politicized and disingenuous effort at that.

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