Condemnation or Commendation? GOP Moves To Strip Swalwell From Intel Committee But The File Remains Sealed

House Minority Leader Kevin McCarthy filed a resolution aimed to remove Democratic Rep. Eric Swalwell from the House Permanent Select Committee on Intelligence. The privileged resolution will force a vote (if only to table to resolution) and members will have to go on record on the scandal. Swalwell reportedly had an intimate relationship with a Chinese spy who raised money for him and helped place individuals in his office. However, he has insisted that he did not reveal classified information and that the FBI found no wrongdoing. Two striking narratives will emerge in the vote.  McCarthy insists that the sealed file shows disqualifying conduct while Democrats have portrayed Swalwell in more heroic terms, including one leading Democrat actually saying that Swalwell deserves to receive the Congressional Medal of Honor for the affair.  Putting aside the manifest ineligibility of Swalwell on both a technical and credible basis, the immediate question is why the file remains sealed in its entirely since the Chinese and its spy already know what happened.  So does Swalwell. The only people in the dark are most voting members and, of course, the voters themselves.  The closed file raises a difficult question balancing the need for an informed vote for members against the need for privacy for an accused member.

The two-page resolution states that Swalwell “has not denied public reporting that a suspected Chinese intelligence operative helped raise money for Representative Swalwell’s political campaigns” and “other troublesome elements of public reporting.” In response, Swalwell denounced the resolution as pure “McCarthyism” for not mentioning that the FBI found “no wrongdoing.”

It was an ironic moment for Swalwell how has been previously denounced for denying basic due process to others in past investigations and supported the surveillance of the Trump campaign under the Obama Administration.

Yet the most curious element will be that most members and the public will not know what is in this file when the vote occurs. Why? While there may be a legitimate basis for redactions, the basic facts can be disclosed on the involvement of the Chinese agent Fang Fang in raising money or pushing hires or interns in Swalwell’s office. Moreover, the nature of the relationship remains sealed and Swalwell refuses to answer basic questions on that relationship.

Speaker Nancy Pelosi and McCarthy have very different takes on what is in the file.  Yet, there is no stated rationale for the total seal on the file. It is hard to understand all of the material being classified since China and its spy are entirely aware of the facts as is Swalwell. If the seal is to protect confidential information on the nature of Swalwell’s relationship, the question is whether such facts should be barred in their entirety when it is not classified.

What is striking is the failure to clearly state the reason for the seal and how members are to vote on the resolution without access to such information. This is not a clear cut issue in my mind. I can see the value of protecting Swalwell from embarrassing details if they are not material any criminal or reckless conduct.  If the allegation is true, Swalwell may be entirely innocent in being seduced by a Chinese agent. They could still reflect poor judgment but there is an argument for sealing personal details of an affair if there was no showing of reckless or criminal conduct. Clearance files often contain highly personal details that are disclosed on an understanding of confidentiality.  The only issue that does not involve the disclosure of classified information is whether Swalwell could have or should have recognized the threat of Fang Fang as a foreign agent.

One possible resolution is to allow the full sealed file to be seen by any voting member or to produce a summary or redacted version. That could include confirmed many of the reported details on this Chinese agent raising money for Swalwell and playing a role in the selection of individuals to work in his office. Those are not classified or confidential matters. Swalwell has refused to confirm such details or the nature of his relationship with the Chinese spy. The first step however is to confirm if the file is being withheld as classified (which is dubious) or because it contained personal and confidential information.