A classified, four-page memo outlining misconduct by the Justice Department and the FBI has scandalized Capitol Hill. Congressional Republicans claim the memo proves what President Trump and people associated with his campaign have been arguing all along: that the investigation into alleged collusion between the Trump campaign and Russia during the 2016 presidential election was based upon nothing more than Left-wing fabrication.
If true, the memo could spell the end of Robert Mueller’s special investigation and turn the tables on the Democrats, including high-ranking members of the Obama Administration, and perhaps the former president himself.
Yet, when pressed for more information, the Republicans refuse to release details, citing the fact that the memo is classified.
Well . . . OK. So what? Aren’t these congressional Republicans capable of declassifying the memo? If not, couldn’t President Trump relieve them of the burden of keeping this incendiary information to themselves by simply declassifying the document himself? Failing that, is Congress totally powerless to do anything to release this information to the public?
Bear in mind, if what some Republicans are saying about the memo is true, then it would provide key evidence that the Obama Administration weaponized the FBI in an attempt to sway the last presidential election. Such a revelation could render the Democratic Party politically dead for a generation. Yet, the Republicans refuse to declassify the document.
Again, it’s not as if congressional Republican leaders or the president lack the authority to override the memo’s classification. If they want to, they can. It’s as simple as that.
What’s more, if the memo is as damning as many (myself included) believe it to be, our elected leaders—regardless of party—have a duty to release the information to the American people with due haste.
Democrats, notably House Intelligence Committee ranking member Adam Schiff (D-Calif.), object that releasing the memo without the supporting documents that accompany it would be confusing and misleading to the public. Left-wing pundits have picked up on the theme, dismissing the Republican memo as conspiratorial hyperventilating.
Well, there’s only one way to find out.
There are ways that Congress could override the classification of the memo. The clearest path would be for House Intelligence Committee Chairman Devin Nunes (R-Calif.) to call for a vote to release its contents.
But should that fail, what’s to prevent a congressman from reading it into the public House record?
I don’t usually advocate the release of classified information by Congress. In rare cases, however—and this one seems like a doozy—Congress has no choice but to present such “explosive” information to the American people.
During ordinary times, classified information can secure critical “sources and methods.” It helps to protect our republic. But if the information contained in the FBI memo proves that former President Obama misused his power to get the FBI to behave illegally to undermine an election and help the Democrats win, then the classification of this document only protects the perpetrators of this crime against the republic.
Besides, if a rank-and-file Republican member of Congress did publicize the document without authorization, he or she most likely wouldn’t face criminal penalties—especially if he were to read the document aloud on the House floor.
Although House members swear an oath of secrecy, they are also granted special free speech protections (to compel real debate in Congress). This protection is similar to the qualified immunity that attorneys (and civil servants) enjoy—they are shielded from damages for civil liability, so long as those attorneys did not violate an individual’s “clearly established” statutory or constitutional rights.
So long as a congressman (maybe a member of the Freedom Caucus or Speaker Paul Ryan himself) issued a public statement in the House chamber detailing the contents of the classified memo, he or she would almost certainly be protected from criminal prosecution under longstanding House rules. As for any political fallout, it would be up to voters to decide whether truth is a defense.
The member also might have Supreme Court precedent on his side. In the 1972 case of Gravel v. United States, the court found that former U.S. Senator Mike Gravel (D-Alaska) was protected by the Constitution’s “speech and debate” clause when he read infamous the Pentagon Papers into the Congressional Record. Of course, when Gravel acted, Daniel Ellsberg had already leaked the classified documents to major news outlets.
One difference: Senators don’t take the same secrecy oath that House members do. So if we want to be sticklers about it, the Gravel precedent in the Senate may not necessarily apply to the lower house. But given the high-profile nature of the case, it’s difficult to imagine any congressman suffering criminal penalties.
Bottom line: congressional Republicans should release the FBI memo—with or without formal approval—or they need to shut up. It’s almost criminal to lead the public on about the contents of this document, and then fail to share that information with the people.