Below is my column in the Hill Newspaper on the controversy surrounding demand letters sent out by the Senate Select Committee on Intelligence — and the scope of the discovery sought by its lead Democratic counsel. The scope of discovery is always a difficult issue in litigation and lawyers resist efforts to limit the scope of evidence. However, reasonable limits are usually worked out between counsel but, in this case, the Senate counsel appears to have doubled down on a definition that is facially too broad. More importantly, it raises serious constitutional concerns. The definition reads too much like a street cry to “bring out your Russians.”
Here is the column:
Do you know or have you ever known anyone of Russian descent? Think carefully, because the Senate Select Committee on Intelligence could well be interested in your answer.
In a letter from the Democratic senior minority counsel for the committee, April Doss, various individuals and groups were told to reveal not just any Russian citizens with which they have associated but anyone that an organization “knows or has reason to believe [is] of Russian nationality or descent.” Any degree of Russian blood.
The demand from the Senate raises serious issues of free speech and associational rights. Suspicion based on nationality has a long and dark history in the United States, a history being ignored in the rush to incriminate all things Russian in Washington.The Senate not only demanded information on anyone of Russian descent involved in the 2016 election but involved in some capacity in “activities that related in any way to the political election process in the U.S.” So these individuals and groups are expected to reveal the names and association with anyone with any Russian blood who acted “in any way” with any aspect of the “political election process in the U.S.”
The demand for information from the Senate has gone out to a wide range of individuals, including Jill Stein, the 2016 Green Party candidate. As a struggling third party, it is particularly concerning for the Green Party to disclose its supporters and associations to a committee composed of members from the two dominant parties.
The forced disclosure of such names has long been viewed as a threat to core constitutional rights. In the 1958 case National Association for the Advancement of Colored People v. Alabama, the U.S. Supreme Court ruled against Alabama in seeking the list of members from the NAACP. The court ruled that the disclosure of such names “may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.”
While the Senate may argue that the mere disclosure of names does not mean that these individuals have committed any wrongful acts, the Court found that the act of disclosure itself creates a chilling effect on speech. The sweeping Senate demand was issued in December.
Notably, in 2016, I testified in Congress in a controversy over a congressional investigation of state prosecutors and environmental public interest groups involved in an alleged campaign against Exxon Corporation. Massachusetts Attorney General Maura Healey, New York Attorney General Eric Schneiderman and others had issued subpoenas demanding disclosure of academics and groups associating with Exxon and other energy companies opposed to climate change reforms. The House Science Committee responded with demands for evidence on coordination or communications between those prosecutors and environmental groups.
At the time, Democratic lawmakers like Sen. Sheldon Whitehouse (D-R.I.) denounced the demand, and many distributed a letter signed by law professors that declared, “The subpoenas, and the threat of future sanctions, themselves threaten the First Amendment — directly inhibiting the rights of their recipients to speak, to associate and to petition state officials without interference from Congress.” In my testimony, I expressed similar concerns over protecting free speech and associational rights. While I concluded that the committee was not constitutionally barred in seeking such evidence, I strongly encouraged the committee to narrow its demands and ultimately did narrow its discovery.
What is striking is that the demand from the House committee that led to the outcry from Democratic members in 2016 is a model of restraint compared to the Democratic demand letter from the Senate committee. This country has had a long and ugly history with investigations or actions based on nationality. From the Chinese Exclusion Act of 1882 to the California Alien Land Law of 1913 to the Japanese internment camps of World War II, we have often yielded to our prejudices or fears. Ironically, Democrats most recently objected to the use of nationality in the Trump travel ban as unlawful and “un-American.”
The demand from Doss, who was reportedly brought on to the Senate committee staff by vice chairman Mark Warner (D-Va.), is particularly worrisome because it is entirely unnecessary. The Democratic members could have simply tailored their questions to focus on specific types of actions or advocacy linked to Russian interests. That would make more sense, since the Russians have used non-Russians to pursue such interests. Instead, individuals and groups received demands for any “Russian persons” who may have had some involvement in the 2016 U.S. election.
We have roughly three million Americans claiming Russian descent, including 750,000 who were either born in Russia or have at least one parent or grandparent of ethnic Russian heritage. These citizens have every right and civic obligation to participate in our elections. They include some of our greatest artistic and social icons, from Woody Allen to Michael Bay to Irving Berlin to Harrison Ford. The list also includes such genetic fellow-travelers as Ben Cardin, William Cohen, Russ Feingold, Al Franken, Bernie Sanders and former Sen. Jim Talent (R-Mo.), whose paternal grandparents were Jewish immigrants from Russia. All of these national politicians participated in the 2016 U.S. election. It would also include my children, since my wife descends from a Jewish family from Minsk in the 1800s.
The Senate committee has every right to look into the role of the Russian government and its surrogates in our presidential election. This will necessarily involve scrutiny of the ties, including business and other ties, between potential targets or witnesses and Russia. However, the Senate Democratic staff has flipped the proper inquiry. Rather than confining its discovery to people engaged in well-defined contacts or conduct and then looking at their background, the Senate is looking for “Russians” and then investigating their conduct. While the letter does not ask if and how long your family has been Russian, the end result is the same.
For those of us who have supported the special counsel and congressional investigations, the Doss letter undermines the credibility of the effort to find the truth about campaign interference. It is not simply a gratuitous insult to millions of Russian Americans, but a careless exercise of congressional authority. Moreover, it conveys a reckless, if not desperate, effort to find Russians to fulfill some simplistic narrative of collusion. The fact is that you do not need actual Russians in the United States for Russian collusion, as any more than being Russian means you are more likely to collude. The evidence of Russian intervention has been found by following moneylines and codelines, not bloodlines.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.