In the leaked recordings of Trump henchman Devin Nunes speaking at a GOP fundraiser last month, Nunes lays out a pretty explicit example of what kind of collusion he says would rise to the level of illegality. In the audio obtained by The Rachel Maddow Show, Nunes paints a hypothetical scenario in which the fundraiser's host, Washington Rep. Cathy McMorris Rodgers, gets stolen emails directly from a foreign government and then releases them. Here’s Nunes:
Okay, now we have a problem, right? Because somebody stole the emails, gave ‘em to Cathy, Cathy released ‘em. Well, if that’s the case, then that’s criminal.”
If that's the case, then that's criminal sounds a lot like a set up for a scenario Nunes doesn't expect to play out but that he’s advancing as the bar one must reach to meet the threshold of criminal behavior. Think about it—between the extensive information Nunes has been privy to through his contacts at the White House and being chair of the House Intelligence Committee, he's in a position to have some idea of the collusion charge Trump allies expect to come down the pike from special counsel Robert Mueller, even if he doesn't know the exact evidence that will accompany it. As we already know, Trump and his allies have made the very public switch from arguing "there was no collusion" to saying "collusion isn't a crime."
But here, in private, Nunes appears to be priming GOP donors for how to discern what kind of collusion is criminal behavior and what isn't. He doesn’t provide them with super sophisticated analysis and, based on the fact that we don't have the entire recording, it's hard to know if the entirety of the argument he made was even legally accurate. But he does designate one particular set of events as criminal in what appears to be an attempt to suggest that anything short of that is not criminal.
What if, for instance, Russia stole emails in an effort to help Trump, gave them to WikiLeaks, which leaked them, and Team Trump knew about the whole thing but didn't handle the emails directly? According to the Nunes set up, that might fall short of being criminal because the Trump campaign didn't receive the emails from Russia and wasn’t the entity that released them. Again, it's not a sophisticated analysis most likely because it's not intended to be. Instead, Nunes offers an intentionally rigid set of criteria that he seems to be advancing in hopes that the GOP faithful will later apply it to the facts that actually emerge. What they will be left with is an analysis that purposely excludes a whole bunch of other scenarios that could also amount to criminal conspiracy but don't fit into the box Nunes has supplied to them.
Given the fact that Nunes also spent a good portion of the audio explaining to the audience that House Republicans definitely want to impeach the person overseeing the Russia probe, Deputy Attorney General Rod Rosenstein, it makes sense that Nunes would be priming attendees to be outraged (or at least skeptical) of whatever findings actually emerge from the investigation.
The posture of Nunes in this tape fits perfectly with the intense effort we are seeing from Trump, his lawyers, and his allies to discredit Mueller's findings in advance of when they are actually made public. Based on Rudy Giuliani's latest collusion schtick, Mueller's team has presumably found some evidence of collusion—otherwise Rudy G wouldn't be wasting his time trying to sell America on the notion that "collusion is not a crime." But given what Nunes is pushing, Mueller's evidence likely won't be as simple as: Russia stole emails, Russia provided them directly to Team Trump, and Team Trump then disseminated those emails.
As Nunes says, that would be criminal. What he doesn’t say in the leaked portion of the tape is that there’s a whole host of other scenarios that would also amount to criminal conspiracy.