When Congress initiated impeachment proceedings against President Richard Nixon 45 years ago, the House Intelligence Committee didn’t exist.
Now, Democrats plan to use the panel — and its access to the nation’s most closely guarded counterintelligence secrets — to help guide a potential impeachment of President Donald Trump, according to Democratic aides.
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The Intelligence Committee’s involvement could provide Democrats with more evidence against Trump that could strengthen their case against him.
The intelligence panel’s role is a sign of the unprecedented nature of the questions surrounding Trump’s relationship with Russia, as well as the uncharted territory House Democrats find themselves in as they consider whether to formally recommend Trump’s removal from office.
Typically, impeachment proceedings are the province of the House Judiciary Committee — and the panel, led by Chairman Jerry Nadler (D-N.Y.), has taken the lead in a nascent legal fight that its members say could lead to articles of impeachment. But Nadler isn’t going it alone.
Sources involved in the process say Intelligence Committee Chairman Adam Schiff (D-Calif.) signed off on the panel’s legal strategy and suggested approaches that would closely bind the Judiciary and Intelligence Committees together as the process unfolds. Allegations that Trump welcomed Russian interference in the 2016 election while pursuing a business deal in Moscow have taken center stage for Schiff’s panel.
“In a case as unique as Trump, it is important to consider the totality of the evidence, including classified information,” said a source close to Schiff. “We’ve been working closely with the Judiciary Committee throughout this process and will continue to provide support as needed.”
A spokesman for California Rep. Devin Nunes, the top Republican on the Intelligence panel, did not respond to a request for comment. Schiff declined to comment for this story.
The relationship between the committees became clearest in the Judiciary Committee’s request last month for a federal judge to release reams of former special counsel Robert Mueller’s secret evidence, collected through the use of a grand jury. House lawyers have said the committees require this information to determine whether to recommend articles of impeachment against Trump.
“In light of the nature of the special counsel’s investigation and [the House Intelligence Committee’s] jurisdiction over intelligence and counterintelligence-related matters,” the House’s grand-jury petition states, “the Judiciary Committee will seek [the Intelligence Committee’s] assistance in reviewing grand jury materials and other evidence and in assessing whether to recommend articles of impeachment against the president.”
Traditionally, an impeachment process has involved the public airing of allegations and evidence against a sitting president. But counterintelligence information, by its nature, is classified and cannot be publicly released or discussed — presenting lawmakers with a new challenge when making the public case for Trump’s ouster.
“The Constitution doesn’t contemplate the notion of having a classified portion of an impeachment process, and it would be political malpractice to try to pursue such a drastic remedy without fully informing the public of the complete factual record,” said Bradley Moss, a prominent national security attorney. “If articles of impeachment are pursued, the House will have to rely upon unclassified information or, as a last resort, use its own Article I authority to disclose otherwise classified information.”
Others noted that the House would have to weigh taking the extraordinary step of revealing classified information if it felt that information contained in secret files were crucial to prove their case.
“It’s going to be a challenge because if they were to bring articles of impeachment and get to the point where there’s a trial, ostensibly the president should be able to see all the evidence against him,” said Asha Rangappa, a former FBI counterintelligence agent. “Are they willing to make that tradeoff? They would need to work with the CIA and allies to get particular sources to safety if they’re human sources. They would have to be willing to dry up particular methods of collection because they would be getting exposed. That would be a decision they would need to make.”
The committee has the option to disclose classified information, but it has only been used once in its history: under Nunes’ leadership, when his staff drafted a memo intended to cast doubt on the origins of the investigation of Russia’s links to the Trump campaign. The process, laid out in the House rules, allows lawmakers to reveal classified information if the full House deems it in the public interest, even over the objection of the president. But in Nunes’ case, Trump, over public protests of the FBI, ultimately opted to declassify the material.
Similarly, grand-jury evidence is sensitive and kept secret by law, with few exceptions. The Intelligence Committee is well suited to handle such materials, and its involvement could alleviate concerns about grand-jury information being leaked.
“The Intelligence Committee’s ability to handle high levels of classification — that’s what they’re designed to do. And because of that, what they can do is they can sign in and sign out anyone who needs to review it. They can create a record of who looks at the material,” said Mieke Eoyang, a former subcommittee staff director for the panel, adding: “We don’t people who have a history of dealing with this at a presidential level.”
One former Judiciary Committee official said the Intelligence Committee’s involvement could assuage a court’s concern about how grand jury information would be handled.
“It’s possible, but unproven, that this collaboration may give the legal arguments more jet fuel in the courts for grand jury document access,” said Julian Epstein, who was on the Democratic staff of the Judiciary Committee during the Clinton impeachment process.
The Intelligence Committee, which was created as an outgrowth of the Watergate era to police the intelligence community, was never intended as a vehicle for impeachment. The process of drafting articles of impeachment is well outside the panel’s traditional jurisdiction. But in this unique case, Schiff’s committee would review the sensitive grand-jury information related to volume one of Mueller’s report, which details Russia’s interference in the 2016 presidential election.
In addition, the panel could provide Nadler’s staff with documents and testimony gleaned as part of its own probes and its general oversight of the intelligence community. The Intelligence Committee — first under Republican leadership in 2017 and then Democratic leadership this year — conducted dozens of interviews with witnesses connected to the Mueller investigation.
Schiff has remained aligned with Speaker Nancy Pelosi in opposing a formal impeachment inquiry, opting to rely on the evidence-gathering process to guide lawmakers. But in signing off on the Judiciary Committee’s court filings and actively suggesting language to bolster its legal arguments, the chairman could be signaling a shift.
In an MSNBC interview last week, Schiff said the House could move forward with articles of impeachment as soon as fall if the White House continues to stonewall congressional inquiries to the point of dragging out the various court fights.
“If the litigation takes too long — that is, if they are able to legally string this out too long — we will have to make a judgment about whether to go forward with articles of impeachment, even in the absence of being able to bring these witnesses in and obtain these documents, because the obstruction of Congress itself will have risen to that level,” Schiff said.