In an extraordinarily rare move, House Intelligence Chairman Devin Nunes (R-Calif) revealed to reporters that he had “seen intelligence reports that clearly show that the president-elect and his team” were at least monitored by American intelligence agencies “incidentally” after being caught up in communications with foreign officials.
Nunes, who said the monitoring was legal, nonetheless, wanted to immediately brief the President about what he had learned. Trump quickly responded saying that he felt somewhat vindicated about these revelations given his previous tweets accusing President Obama of wiretapping him.
But, what no one seems to be paying attention to is the fact that Nunes’ actions of disseminating this information to the public may in itself be illegal. A spokesperson for Nunes insisted to LawNewz.com that the congressman revealed no classified information and therefore did nothing wrong. But, legal experts aren’t so convinced, and one believes that he could even be prosecuted.
“I was shocked that he did it, startled, befuddled,” Bradley Moss, a national security expert and attorney told LawNewz.com. “It is virtually unheard of to have a House Intelligence chairman ever talk about these type of things.”
So where could Nunes have run afoul of the law? Here’s the part of his Wednesday press conference that you need to pay attention to (transcription via LawFareBlog.com):
Reporter: To be clear, you talk about this as being collected incidentally. But you say it had nothing to do with Russia. Are you suggesting these communications could have been collected as part of a criminal investigation, a criminal warrant?Nunes: No. In the dozens of reports I was able to see, I was able to determine that it looks like it was legal collection, incidental collection, that made itself into intelligence reports. It has to do with FISA, and there are multiple FISA warrants that are out there, but there’s nothing criminal at all involved. (emphasis added)
As you can see from this back and forth with reporters. Nunes revealed that there were multiple Foreign Intelligence Surveillance Act warrants that he had seen or at the very least was made aware of. FISA warrants are issued in secret to allow for legal surveillance of agents of foreign power. Some experts believe Nunes, by admitting he knew of the existence of such FISA warrants, just revealed classified information.
“In my view, the existence or non-existence of a FISA warrant that the Congressman revealed during his press conferences today is in itself a classified fact,” Moss said. And it appears FBI Director James Comey might agree with this assessment.
During Monday’s House Intelligence Committee, he told Senators, including Nunes, “All FISA applications reviewed by the court and collection by us pursuant to our FISA authority is classified.”
Furthermore, the Department of Justice also confirmed that revealing the existence of a FISA warrant would amount to divulging classified information. When USA Today investigative reporter Brad Heath tried to obtain information related to Trump and FISA warrants. The DOJ responded denying his request in a letter which stated: “To confirm or deny the existence of records such as those you have requested would tend to reveal properly classified information regarding whether particular surveillance techniques have or have not been used by the U.S Intelligence Committee. ” (emphasis added)
“Considering the focus on leaks of FISA material of Republicans at Monday’s hearings, the question of whether Nunes himself has just improperly discussed classified FISA matters in public is one that deserves at least some attention,” Benjamin Wittes said in a blogpost on LawFare.
The Espionage Act (18 USC 798) prevents disclosure of classified information “concerning the communication intelligence activities of the United States or any foreign government.” If pressed, Congressman Nunes may try to bring a defense that he is protected by the Speech and Debate Clause.
“But it is unclear and disputed whether that would protect a press conference given in hallway as opposed to have made the remarks in the Hall of the house,” Moss said, though he is doubtful the current DOJ would ever go after him legally.
A spokesperson told LawNewz.com that the Congressman did nothing illegal, insisting that “he did not divulge classified information.”