We have just been informed that the President has approved the release of the Nunes memo.
This memo is the product of the Republican majority of the House Select Committee on Intelligence. It purports to describe the process by which the FBI obtained a warrant from the FISC. The Democratic minority of the committee has produced its own report, but the majority has forbidden its publication.
The Nunes memo is a four-page document, created by the staff of House Intelligence Committee Chairman Devin Nunes (R-Calif.), that alleges the FBI abused its surveillance authority, particularly when it sought a secret court order to monitor a former Trump campaign adviser. It is the work product of Nunes’s months-long effort to investigate the FBI and Justice Department and their ongoing probe into whether the Trump campaign coordinated with Russia.
The release of this memo means that the American public will see only a small portion of the debate over the propriety of the warrant, and only one party’s version.
This injustice can be remedied. It is time for Representative Adam Schiff, the Ranking Member of the committee, to take to the floor of the House and read the minority report into the record. In so doing, he would be protected from prosecution by the Debate Clause.
Perhaps the most dramatic example of the Debate Clause in action occurred in 1971 when Senator Mike Gravel (D-Alaska) convened a meeting of the subcommittee he chaired and read extensively from a copy of the Pentagon Papers, which were top secret until that point. He then placed the entire 47 volumes in the public record.
The Nixon administration, which had sought to retrieve the stolen documents, knew it could not prosecute Gravel, so it tried to charge the aide who, at Gravel’s order, finished reading the document when Gravel could not continue.
The case eventually ended up before the US Supreme Court as Gravel v. United States, 408 US 606. It held, in relevant part, that,
Because the claim is that a Member’s aide shares the Member’s constitutional privilege, we consider first whether and to what extent Senator Gravel himself is exempt from process or inquiry by a grand jury investigating the commission of a crime. Our frame of reference is Art. I, § 6, cl. 1, of the Constitution:
“The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”
The Court understood Gravel’s argument to be that
… the Speech or Debate Clause at the very least protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible.
This protection extended to his aide. The Court narrowed the privilege somewhat by holding it did not extend to publication by a private printing company Gravel had engaged.
The bottom line for our purposes is that members of Congress may not be prosecuted for a speech made in Congress even if they intentionally reveal government secrets, an act which would otherwise constitute a crime. Schiff can read the minority report into the record without fear of prosecution and prison.
Only one question remains.
Will Adam Schiff have Gravel’s courage?