Skip to main content

Here’s a Way that GOP Reps Can Disclose Classified FISA Memo Without Going to Jail


Republicans who recently learned about the contents of the FISA memo have said that the American people need to know what it says, including surveillance practices that it reveals. Here’s an interesting way that GOP reps could disclose: Congressmen enjoy immunity from prosecution for their speech while in session, so why not just talk about it?

CNN host Chris Cuomo brought this up  Monday night with Rep. Eric Swalwell (D-California),

“You have constitutional immunity for anything that’s said during a speech or debate on the floor,” Cuomo noted. “Somebody could just read this on the floor and then could put all this information in the congressional record.”

Technically, Cuomo is right. The Speech or Debate Clause of the Constitution protects members of the House and Senate from being punished for things they say on the record. So how does this mesh with ideas of classified information? Could a Congressman just reveal classified information on the House floor and not face consequences?

The precise issue Cuomo raised hasn’t quite come up before, but a similar situation arose when Senator Mike Gravel read the Pentagon Papers on the record in 1972. The difference there was that the papers had already been leaked to the media. Still, the Supreme Court ruled in Gravel v. United States that the Senator was protected by the Constitution.

Now, this protection doesn’t mean that a member of Congress can’t face internal discipline for revealing classified information. Such discipline could even include expulsion, should enough people vote that way, but with the GOP controlling Congress, it stands to reason that a Republican who revealed the information could get away with it.

Of course, as Cuomo also pointed out, there’s an even easier way around this.

“The man in charge of classifying, and therefore declassifying, is the president. So if this is so valuable, why hasn’t the president declassified it?”

It’s a good question. If the information is really that significant, and the public really needs to hear it, why doesn’t President Donald Trump just declassify it? The memo has been rumored to include details of how the Obama administration used FISA warrants to conduct surveillance of the Trump campaign. This would support Trump’s claim that Obama was using questionable practices to spy on him.

The fact that neither of these steps are being taken to reveal this information to the public likely means that the situation is a little more complex than political figures are letting on. One possibility is that the memo really doesn’t contain anything significant, and Republicans are merely posturing. Another is that the memo contains information related to national security, and that while parts of it may be relevant to the American people, the bulk of it is just too sensitive to get out into the public.

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime: