Impeachment, Ukraine

Phone Records Drag Nunes into the Ukraine Scandal

Instead of grilling witnesses during last month’s hearings, Devin Nunes should have been answering questions himself.
by Kim Wehle
December 4, 2019
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Devin Nunes. (Photo by Mark Wilson/Getty Images)

It turns out that at least one member of Congress who is poised to stand in judgment of the president was also involved in the misconduct that is the subject of the House Intelligence Committee’s Trump-Ukraine impeachment inquiry report: the committee’s own ranking member, Devin Nunes (R-Calif.).

Although impeachment is primarily a political process, it is not unbounded. There are standards, albeit succinct ones, set forth in the Constitution. And there is guidance we can glean from historical precedent. Beyond that, we can expect members of Congress to act on impeachment in the interests of their constituents—and not to protect their own hides. The old Latin adage nemo judex in sua causa (“no one is a judge in his own cause”) means that conflicted members with a stake in the outcome should recuse themselves from the process. Nunes must go.

The Intelligence Committee report lists phone records showing that Nunes communicated with Rudy Giuliani and Lev Parnas in April 2019—just days before Volodymyr Zelensky defeated Petro Poroshenko to become the president of Ukraine. (President Trump called Zelensky after his April 21 win.) Between 9:48 a.m. and 7:56 p.m. on April 12—over a span of approximately ten hours—a total of 27 documented phone calls were exchanged among Nunes, Giuliani, Parnas, Trump lawyer Jay Sekulow, John Solomon, Victoria Toensing, and phone numbers in the White House and the budget office. Nunes participated in four of those documented calls. This means that Nunes is a fact witness with firsthand knowledge of the events giving rise to the impeachment inquiry. Yet he failed to disclose this critical conflict of interest to Congress and the public, and instead urged a fraudulent counternarrative that many unwitting Americans now believe.

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Who were the others in this flurry of phone calls? John Solomon was a contributor to The Hill who wrote a series of stories hawking false conspiracy theories about Joe Biden and Ukrainian interference in the 2016 presidential election—a myth spawned by Russian President Vladimir Putin. Solomon also stoked the unfounded smear campaign against former Ukrainian Ambassador Marie Yovanovitch. After he left The Hill, he was hired by Fox News.

Toensing is a former Trump lawyer who, along with her husband Joe diGenova, represented Solomon and a motley crew of Ukrainians—including the corrupt former prosecutor general Yuriy Lutsekno and his deputy, both of whom were sources for Solomon’s discredited articles. Toensing also reportedly participated in the Giuliani-led effort to get Ukraine to investigate the Bidens.

And Parnas is a co-defendant under indictment in the Southern District of New York for alleged conspiracy “to circumvent the federal laws against foreign influence by engaging in a scheme to funnel foreign money to candidates for federal and State office so that the defendants could buy potential influence with candidates, campaigns, and the candidates’ governments.” The candidates and campaigns were Republican ones.

Now that we know of Nunes’s participation in these phone calls, it is clear that his opening statement at the House Intelligence Committee’s public impeachment hearings was dripping with hypocrisy:

Anyone familiar with the Democrats’ scorched-earth war against President Trump would not be surprised to see all the typical signs that this is just a carefully orchestrated media smear campaign. . . .

The Democrats rejected most of the Republicans’ witness requests, resulting in a horrifically one-sided process where crucial witnesses are denied a platform if their testimony doesn’t support the Democrats’ absurd accusations. . . .

And most egregiously, the staff of Democrats on this committee had direct discussions with the whistleblower before his or her complaint was submitted to the Inspector General, and Republicans cannot get a full account of these contacts because the Democrats broke their promise to have the whistleblower testify to this committee. Democrat members hid these contacts from Republicans and lied about them to the American people on national television.

Hmm. Conducting a smear campaign? Denying access to crucial witnesses? Hiding contacts and lying about them to the American people on national television? All of these accusations apply to Nunes himself, who kept secret that he is a fact witness in this investigation with personal knowledge of Rudy Giuliani’s efforts vis-à-vis the Ukrainians.

By peddling a false counternarrative to the American people, Nunes violated his oath of office to defend the Constitution. His conduct also violated the House of Representatives Code of Official Conduct, which mandates that members “shall behave at all times in a manner that shall reflect creditably on the House.” And he potentially jousted with 18 U.S.C. § 1505, which can trigger a five-year prison term for any individual who “corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede . . . the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress.”

But Nunes is not alone in Congress when it comes to his dubious fidelity to the Constitution, the rule of law, and the American people. He is joined by every other member of Congress who turns a blind eye to foreign influence in U.S. elections invited by the president or any other elected official. As we parents often tell our children, bystanders on the playground who stare and shake their heads but do not intervene to stop a bully are participating in the bullying. These days, Republicans in Congress cannot bring themselves even to stare and shake their heads. They chant and cheer and jeer.

Nunes should be investigated by the House Ethics Committee and censured by a majority vote of the full House. A censure would require Nunes to stand in the well of the chamber and hear the charges against him. Such a well-deserved spectacle would also send a message—to our children, to our leaders, and to the world—that self-dealing, bullying, and lying are unacceptable.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is currently a visiting professor and fellow in law and government at American University’s Washington College of Law. She is also a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins).