Did Nunes’ disclosure of secret intelligence data violate the law?

WASHINGTON – The chairman of the House Permanent Select Committee on Intelligence apologized Thursday for going public with information that a day earlier he’d described as coming from classified “intercepts.”

But the apology only served to heighten the irony of the disclosure. Only three days earlier, the chairman, Republican Rep. Devin Nunes of California, had insisted that revealing such information from secret Foreign Intelligence Surveillance Act warrants was worthy of criminal charges under the Espionage Act.

“Did he violate the Espionage Act? I don’t know enough to make that determination right now,” said Sen. Claire McCaskill, a Missouri Democrat and a former prosecutor. “But even without knowing all the facts, it’s pretty obvious that he was perilously close.”

Jack Langer, a spokesman for Nunes on the intelligence committee, said Nunes had not violated the law, which could carry a penalty of 10 years in prison.

“The chairman did not identify the targets of the surveillance and only spoke in general terms about the content,” Langer said. “In response to a specific question, he said it appeared to be FISA information, but he repeatedly said he won’t know until he receives all the information he’s requested about these collections.”

Rep. Adam Schiff, the California Democrat who is the ranking member of the committee, said he too couldn’t say definitively if Nunes had violated the law – “I haven’t seen the materials.” But he acknowledged that the concern was there.

It was an odd ending to what was a big week for Nunes. On Monday, he had chaired a rare open hearing of his usually secretive intelligence committee where the topic was Russian meddling in the 2016 U.S. presidential election. In that hearing, FBI Director James Comey made the bombshell announcement that the ongoing investigation into the meddling includes looking at whether members of the Trump campaign colluded with Russia in undermining the election. Comey said criminal charges were a possibility.

During that hearing, Nunes and other Republicans spent a great deal of time questioning Comey and National Security Agency head Adm. Mike Rogers about the seriousness of revealing information from secret FISA warrants.

While questioning Comey, Nunes said: “I remain extremely concerned about the widespread illegal leaks that you just referenced in your – in your testimony. Just for the record though, I want to get this on the record. Does the unauthorized disclosure of classified information to the press violate 18 USC 793, a section of the Espionage Act that criminalizes improperly accessing handling or transmitting national defense information?”

Comey had replied simply “Yes.”

Nunes then followed up. “Would an unauthorized disclosure of FISA-derived information to the press violate 18 USC 798, a section of the Espionage Act that criminalizes the disclosure of information concerning the communication and intelligence activities of the United States?”

Again, Comey said “yes,” adding, “In addition to being a breach of our trust with the FISA court that oversees our use of those authorities.”

Later, under questioning by Rep. Trey Gowdy, R-S.C., about how reporters can legally find out about information from classified intelligence reports, Comey replied, “If it was declassified and then discussed in a judicial proceeding or congressional hearing. Something like that.”

Gowdy then asked, “How would a reporter know about the existence of intercepted phone calls?”

Comey responded: “Same thing. In a legitimate way, through an appropriate proceeding where there’s been declassification. In any other way, in an illegitimate way.”

So on Thursday, the question became should Nunes be held to the same standard that he and his Republican colleagues appeared to advocate on Monday?

“I don’t know, but of course it’s a concern,” said Sen. John McCain, R-Ariz, who on Wednesday called Nunes’ statements “bizarre.”

What was clear, McCain said, was that the House Russian investigation was now deeply tainted by at least the perception of partisanship in Congress. “This has been my point from the beginning, we need an independent setup. This is clearly another example of why.”

Sen. Ron Wyden, D-Ore., a known privacy advocate who has long expressed concerns about classified surveillance and its potential for abuse, said Nunes’ statements have to be seen in the light of Monday’s hearing.

“You should compare what Mr. Comey said on Monday about the release of classified materials with what Mr. Nunes said” on Wednesday, he admonished.

Then, offering his own comparison, he concluded: “It certainly doesn’t meet my definition of vigorous oversight” of classified material.