Declassified FBI interviews reveal that a staffer informed the FBI in 2017 that, earlier that year, Sen. Adam Schiff (D-CA), then a member of the House of Representatives, and Rep. Eric Swalwell (D-CA) knowingly leaked classified information related to the Russia Hoax. However, because the DOJ claimed that the leaked information was protected by the Constitution’s “speech and debate clause” (which it was not), no one was prosecuted...and now the statute of limitations has passed.

In an October 18, 2017, interview, which came at the height of the Russia Hoax frenzy, an FBI agent reported that a House staffer had contacted him to tell about another staffer who had abruptly been fired for a lack of Democrat party loyalty. The person who contacted the FBI agent said that the fired Democrat staffer told him the following:

Under the system established by [redacted]r [sic], notes would be run up to the ranking member, ADAM SCHIFF, after which a decision was made as to who would leak the information.

Two months later, the FBI interviewed an unnamed staffer, probably the same one who had been fired. This staffer had worked on the House of Representatives Permanent Select Committee on Intelligence (“HPSCI”) and reported directly to Adam Schiff. The staffer explained that, beginning in August 2016, there was a concerted effort to start leaking information to the media about the Russians affecting the election.

When Trump won, the effort to get the Russian collusion smear out there escalated dramatically:

Following the U.S. presidential election in November 2016, the mood within HPSCI was indescribable, said [Staffer]. Ranking member SCHIFF was particularly upset, as he believed he would have been appointed as the Director of CIA had candidate HILLARY CLINTON won the election. The HPSCI minority [i.e., Democrats] viewed the election and its aftermath as a constitutional crisis and, by February 2017, [Staffer] stated that all hell broke loose. During a meeting on 13 February 2017, [name redacted] instructed the staff that he wanted to drive the “Russian Involvement” issue into a joint inquiry, similar to the 9/11 commission. To do so, [name redacted] instructed the staffers to use any sources they had developed [deleted word] the USIC to gather information, which would then be made public through the media in order to compel public opinion. According to [Staffer], this was an explicit request to gather classified information for public disclosure.

The same staffer described being told to investigate Michael Flynn—and we all know how that ended.

The anonymous staffer detailed how there was a concerted effort to mine documents for information, that the people involved knew or should have known that at least some of the information was classified, and that they went out of their way to avoid anyone seeing their activity.

Before [Staffer] left the committee, [Staffer] overheard [name redacted] tell other staffers on more than one occasion that he would use his spouse’s phone to make calls, which [Staffer] believed was a purposeful measure to conceal his activity.

And indeed, the same staffer reported on a direct connection between classified information, the HPSCI, and a media report. What’s striking is that he explicitly accused both Schiff and Swalwell of knowingly leaking the information:

Around the same time [April 2017], a particular leak caused [redacted] to confront HPSCI on the issue. According to [Staffer] a particularly sensitive document made available by [redacted] was viewed by a small contingent of staff, as well as SCHIFF and Representative ERIC SWALWELL. Within 24 hours, the information appeared in the news almost verbatim and [redacted] officials descended upon HPSCI’s offices, threatening to stop providing information unless the leaking ended. [Staffer] suspected that SWALWELL played a role in the leak and noted that SWALWELL had previously been warned to be careful because he had a reputation for leaking classified information. [Insert Fang Fang joke here.]

[snip]

[Staffer] was certain that SCHIFF was behind the February 2017 Meeting during which [name redacted] instructed the staff to collect information from the USIC for purposes of making it public. [Staffer], who considers SCHIFF a friend, asserted that it was SCHIFF’s plan to release classified information in order to compel public opinion, which SCHIFF justified as a response to a constitutional crisis. Even the other committee members acknowledged SCHIFF's involvement. [Staffer] cited a particular business meeting for which he was present along with SCHIFF and Representatives JIM HIMES, JACKIE SPEIER, MIKE QUIGLEY, and JOE HECK. HIMES asked SCHIFF, what is your strategy, why are you going after Trump? SCHIFF answered that it was the right thing to do, but followed by acknowledging that there was not enough for impeachment. SPEIER also questioned SCHIFF as to his strategy and reminded him that democrats were better off running against TRUMP than Vice President MIKE PENCE.

The same report states that the staffer stated the people involved in the leak felt they were protected from the laws against leaking classified information. While the staffer correctly informed them that they were not, he misunderstood the scope of the speech and debate clause, because he thought that Swalwell and Schiff were protected:

[Staffer] opined the HPSCI staff feels it is doing nothing wrong by leaking because they are being told that they are in the middle of a constitutional crisis. Some feel they are protected under the speech and debate clause. [Staffer] has counseled members that the speech and debate clause only applies to congressional members not staff.

Finally, an FBI interview six years later, in June 2023, with a person who is almost certainly the same staffer, repeats much of the same information—and again makes explicit that Schiff instructed the HPSCI to leak classified information:

[Staffer] previously had a positive experience working with the Federal Bureau of Investigation (FBI), related to incidents in 2017 that occurred when [Staffer] worked on the United States (U.S.) House of Representatives Permanent Select Committee on Intelligence. In this position, [staffer] worked with senior political leaders from both major political parties including Congressman Adam SCHIFF and former Congressman Devin NUNES. [Staffer] was friendly with both SCHIFF and NUNES.

When working in this capacity, [Staffer] was called to an all-staff meeting by SCHIFF. In this meeting, SCHIFF stated that the group would leak classified information that was derogatory to the President of the United States, Donald J. TRUMP. SCHIFF stated the information would be used to Indict President TRUMP. [Staffer] stated this would be illegal and, upon hearing his concerns, unnamed members of the meeting reassured [Staffer] that they would not be caught leaking classified information.

[Staffer] was, again, approached about leaking classified information in a separate meeting by unnamed individuals. [Staffer] believed this activity to be unethical and treasonous.

Everyone involved in these leaks to the media should have been arrested for violating 18 U.S.C. §793(e), which makes it a crime to disclose classified information. If convicted, the penalty is up to ten years in prison.

However, nothing happened. As noted above, the staffers involved believed the speech and immunity clause protected them. And, in the June 2023 report, we learn that the DOJ reached the same conclusion:

[Staffer] was eventually informed [the 302 form does not say by whom] that the issue would not be investigated further by the DOJ, as Congressmen have immunity to all speech and actions on the floor of the U.S. House of Representatives. [Staffer] did not believe that the activity he witnessed would be protected by this legal provision.

This is wrong. The “Speech and Debate” clause (Const. Art. I, Sec. 6) states that members of Congress:

shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during the Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The “Speech and Debate” privilege is intended solely to allow elected representatives to speak freely on the floor of the House or Senate. It does not extend to actions outside the four corners of the chambers where politicians debate and vote, and it most certainly does not cover staffers. Moreover, the reference to “treason” and “felony” means that congressmen are not protected from actions that constitute federal crimes.

Nevertheless, Schiff and Swalwell are unlikely to face prison for their alleged wrongdoing. That’s because the limitations period for what they allegedly did is five years from the date of discovery. Someone in the DOJ, who must surely have known that leaking classified information to the media does not have constitutional protection, wanted to ensure that these men and their staffers remained free.

However, if an investigation proves the allegations, the one thing Republicans can do is vote to expel both men from their respective Chambers. Leaking classified information to the media deserves some punishment, even if it’s not prison.

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