Nearly 200 House Democrats have access to read, and have the legal immunity to release, a document that rebuts Republican claims of “FISA abuse” that is expected to become public soon, setting the scene for a potentially historic leak as angry Democrats decide how to respond to the GOP memo.
The White House signaled Thursday it will allow the release of the four-page memo drafted by House Intelligence Committee Republicans after two weeks of intense political debate, over the objection of the FBI and Democrats who say it misrepresents classified information.
The House Intelligence Committee voted along party lines Monday to release the memo and to not release a Democratic rebuttal. Both documents, however, are available to any member of the House to read in a Sensitive Compartmented Information Facility, or SCIF, on Capitol Hill.
Unilateral Democratic release of information has happened before during investigations into potential collusion between the Trump campaign and Russia.
In January, Sen. Dianne Feinstein, D-Calif., released the 300-plus-page testimony of Fusion GPS co-founder Glenn Simpson, whose firm paid British ex-spy Christopher Steele to produce a dossier on Trump that included salacious and unproven sexual allegations.
The FBI’s use of information from Steele to gain a surveillance warrant against former Trump adviser Carter Page is reportedly a major part of the GOP memo. Deputy Attorney General Rod Rosenstein, who supervises special counsel Robert Mueller's probe into Trump's campaign, reportedly was involved.
When Feinstein released Simpson’s testimony, she cited “innuendo and misinformation circulating about the transcript” and said “the only way to set the record straight is to make the transcript public.” Senate Judiciary Committee chairman Chuck Grassley, R-Iowa, had objected to release.
Although the Democratic “FISA abuse” rebuttal may contain more highly classified information, members of Congress and staff acting on their orders can release secrets with immunity from prosecution under the Constitution’s Speech or Debate Clause. Lawmakers historically are reluctant to use that power, citing various noncriminal consequences.
A Democratic source familiar with minority-party views on the House Intelligence Committee suggested unilateral release of the rebuttal was unlikely.
“While it’s true that members could technically exercise their rights under the Speech and Debate Clause and not be held criminally liable, they would face ethics charges, have their classified access revoked, be thrown off the Intel Committee, and possibly face other repercussions,” the Democratic source said.
“Also, and this may come as a shock, Democrats believe that we shouldn’t trash our foundational institutions for short-term gain,” they said.
Still, Republicans believe some Democrats have already been leaking some information from the proceedings. The top Democrat on the House Intelligence Committee, Rep. Adam Schiff, D-Calif., is often accused by Republicans of sharing too much information with reporters.
But he said this week that reading the Democratic rebuttal on the House floor was “not an option.” A spokesman pointed to the remark without elaboration.
Spokespeople for several other committee Democrats did not respond to inquiries about their plans if the Republican memo is released.
The FBI has struggled to pressure the White House not to release the memo. The bureau said Wednesday that “we have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”
A senior administration official told reporters aboard Air Force One on Thursday afternoon, however, that Trump will inform members of Congress “probably tomorrow" that he approves of release.
“The president is OK with it,” the official said. “I doubt there will be any redactions. It’s in Congress’ hands after that.”
Although any member of Congress can release classified documents, one problem, particularly for those not serving on the House Intelligence Committee, is gaining physical access.
Rep. Zoe Lofgren, D-Calif., a noncommittee member and longtime FISA surveillance critic who has said she is worried about the GOP memo’s accuracy, said it’s difficult to imagine how lawmakers would release a document viewable only in a SCIF.
“I don’t see how you can do that unless you remove it [from the SCIF], unless it was a committee member who somehow had a copy,” Lofgren said to the Washington Examiner last week, regarding the original GOP memo. “I never really contemplated a member of Congress just grabbing an article and running out. I just don't think that’s likely to happen.”
Former Sen. Mike Gravel, D-Alaska, who entered thousands of pages of the classified Pentagon Papers into the Congressional Record in 1971, told the Washington Examiner he believes a sufficiently motivated lawmaker could release documents viewable only in a SCIF.
“This is ridiculous. The Congress does leak like a sieve and if a person is intelligent and intent on releasing this information, it’s not that difficult,” Gravel said. “They just pretend it is to cover their backsides.”