Sen. Dianne Feinstein, D-Calif., ranking member of the Senate Judiciary Committee, is asked questions by reporters about President Trump's decision to fire FBI Director James Comey, on Capitol Hill in Washington, Wednesday, May 10, 2017. AP / Jacquelyn Martin
The Nuclear Option in the Trump-Russia Investigation
Lawmakers have an unusual and costly tactic if they believe investigators are withholding key evidence
If U.S. lawmakers decide that the now-leaderless FBI and the Jeff Sessions-led Justice Department can’t be relied upon to bring to light evidence of possible collusion between the Trump campaign and Russia, they have a risky tactic available to them.
Under the Constitution’s “ Speech or Debate Clause ,” a lawmaker on the floor of the House or Senate can read anything — even sensitive or classified information — into the public record, without fear of prosecution of themselves or even their sources. It’s a kind of nuclear transparency button.
“The whistleblower protections encourage that type of disclosure [on behalf of leakers, government employees, etc.] because it’s about encouraging Congress to do its oversight job,” said Mieke Eoyang, vice president of the national security program at the centrist Third Way think tank. “So say, you are in your executive agency, you feel like what’s really going on is wrong and you suspect that complicity goes up your supervisory chain. As a whistleblower, you take that information to your [inspector general] or you take it to Congress, and then you are protected from the disclosure.”
That lawmaker can then read it into the public record because of the Speech or Debate Clause, which basically states that whatever senators and representatives say as part of a floor speech or debate “shall not be questioned in any other place,” including in a criminal court, even for disclosing classified information to the public.
But the limits of the clause, as related to classified information, have been tested only once. In 1971, Sen. Mike Gravel, D-Alaska, entered a series of classified documents about the U.S. involvement in Vietnam, now called the Pentagon Papers , into the Congressional Record.
Below is a remarkable video of that event.
“I did not seek these papers. When they were offered, I accepted them,” Gravel reads. “I have reviewed the papers in my possession and read much of the material. It is a remarkable work to say the least. Remarkable for what it says about those who are chiefly responsible for managing our efforts in Southeast Asia in 1967…The people must know what has occurred over the last 20 years from their government. The story is a terrible one. It is replete with duplicity, connivance against the public and public officials. I know of nothing in our history to equal it for extent of failure and extent of loss in all aspects of the term.”
He subsequently tells reporters, “When I came into possession of these papers I looked around and no one in government had done anything…There was an effort to stifle and hide this stuff,” he said.
The FBI investigated Beacon Press , which republished a portion of the Papers, leading to a Supreme Court ruling in April 1972. The court decided that Gravel’s action was protected speech. The ruling also protected his staffers, to a lesser degree.
The tactic re-emerged in 2014 when Senator Mark Udall, D-Colorado, threatened to read portions of the explosive CIA “torture report” into the Congressional Record if the Senate Intelligence Committee did not declassify more of it. The threat worked. The Senate came out with its own redacted torture report.
But the use of the Speech or Debate Clause is a gutsy move, tantamount to career suicide if not necessarily criminal action. While Gravel escaped unscathed, other senators might not be so lucky. The Senate’s rules say that any member that engages in any “significant breach of confidentiality or unauthorized disclosure” can be subject to “censure, removal from committee membership, or expulsion from the Senate.” In other words, pressing the Speech or Debate Clause button is a fast way lose your committee seat, at best.
“It’s a big gun because you do that and then the executive branch might say, ‘We don’t want to give you access anymore.’ Or they hold back access from Congress,” Eoyang said.
It’s also not an easy trick to pull off and not one you would necessarily want to telegraph, as Udall did. Gravel did not have an easy time getting Pentagon Papers into the record. The first time he attempted it, other senators blocked him using a procedural move. He resorted to a hastily called late-night subcommittee meeting.
In the meantime, senators have other, less costly avenues to take to reveal what they know to the public, including pointed questioning during hearings. The Senate Intelligence Committee can also declassify material on its own.
Exactly what evidence of Trump camp involvement in Russia’s activities, whom it implicates, and whether there is enough of it for a criminal proceeding, is another matter. It could include intercepted communications from foreign intelligence partners. On Monday, during a subcommittee hearing, Sen. Dianne Feinstein, D-Calif, asked former Director of National Intelligence James Clapper if “over the spring of 2016, multiple European allies passed on additional information to the United States about contacts between the Trump campaign and Russians. Is that accurate?”
Clapper responded: “Yes, it is, and it's also quite sensitive.”
The FBI continues to look at connections between a Russian bank and the Trump campaign.
In addition, the Intelligence Committee has reportedly asked the Treasury Department for information related to the President’s finances. The list goes on.
Defense On e reached out to Senate and congressional staffers in March to gauge their interest in using the Speech or Debate Clause if they felt that the FBI’s investigation was being undermined or if they obtained evidence that clearly showed wrongdoing by administration officials.
Only one staffer responded, from the office of Sen. Lindsey Graham, R-S.C.: “Way premature.”