Devin Nunes isn't immune from obstruction of justice charges in Russia probe: NY Times editorial

Rep. Devin Nunes's (R-CA) notorious memo didn't fare well when held up to public scrutiny and Republicans have been forced to backtrack on its importance.

According to a New York Times editorial, the House Intelligence Committee chairman, along with his staff, may end up under special counsel Robert Mueller's investigation into President Donald Trump's possible obstruction of justice.

It began with fellow committee member Rep. Mike Quigley (D-IL) asked Nunes if he or his office coordinated with the White House on the Republican memo about alleged FBI surveillance abuses. Nunes claimed he didn't but refused to answer whether or not his staff worked as an intermediary. The committee staff director called the GOP memo a "'team effort' that involved investigators who had access to source material.”

Late-night meetings, the close relationship to the Trump transition committee and revelations the committee was feeding intelligence to the White House all add up to evidence that points to the contrary. Each of the actions could come under scrutiny from Mueller's investigators.

Press reports have indicated the true purpose of the memo was in giving Trump an excuse to fire Deputy Attorney General Rod Rosenstein, who oversees Muller and the investigation since Attorney General Jeff Sessions recused himself. With Rosenstein out, Trump could install a friendly appointee to oversee the investigation and block Mueller's investigation.

This pathway would prompt an investigation into Nunes' staff and communications they had with the White House. Typically there is a "speech or debate" immunity bestowed to members and staff. The Constitution states the officials “shall not be questioned in any other Place” for “any Speech or Debate in either House." It essentially gives members of Congress immunity from criminal prosecution and civil lawsuits that have anything to do with the laws passed. It extends to acts that are “integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings," the Supreme Court decided in Gravel v. United States.

However, it's entirely possible Nunes and his staff went too far. Minor "connection to legislative acts" doesn't score immunity to anything and everything. The Times cited Sen. Daniel Brewster, who in 1972 lost "speech or debate immunity" in a bribery prosecution. They found that the crime had nothing to do with an act of voting on proposed legislation.

If a staffer worked with the White House to undermine the investigation, The Times noted it would be difficult to see how it could be "essential to the deliberations" of the committee.

If Trump fires Rosenstein and cites the memo it will be obvious Nunes and his team helped make it possible. The president doesn't have the best track record in keeping his mouth shut over the real reasons for terminating employees.