Fox News senior judicial analyst and Fox Nation host Judge Andrew Napolitano called it "unseemly" that House Intelligence Committee Chairman Adam Schiff, D-Calif., released the apparent phone records of fellow lawmaker Rep. Devin Nunes, R-Calif., and suggested Schiff risks a possible Congressional ethics case.
On Tuesday, Schiff put out his committee's 300-page impeachment inquiry report, which included records of Nunes' calls, reportedly obtained through a subpoena of AT&T and Verizon.
The records, which do not reveal the contents of the conversations, apparently show that a phone number associated with Nunes received calls from individuals central to the impeachment inquiry -- the president's personal attorney, Rudy Giuliani, and Giuliani-associate Lev Parnas.
In a Fox News opinion piece, Sen. Rand Paul, R-Ky., called the action "brazen and shameful" and called for Schiff to be "formally censured by the House for his actions."
Schiff, "probably should have said 'a member of Congress' -- could even have said 'a member of Congress on the House Intelligence Committee' but there is no reason to put Congressman Nunes' name in there," Napolitano told Fox News.
"If Congressman Schiff did this for a partisan political reason there is an ethical case," he continued. "If he did it to tie in the impeachment case against the president then there is no ethical case against him."
"The ethics prosecutors in the House are truly bipartisan and it is the only committee in the House that has equal numbers of Republicans and Democrats so he is not going to get off the hook, because the Democrats run the House. This will rise or fall on its merits -- that is whether or not there was an ethical breach."
On "The Story" on Thursday, Martha MacCallum asked Nunes what he discussed in that alleged phone call with Parnas, who has been accused of participating in an effort to convince Ukraine to investigate former Vice President Joe Biden. Separately, Parnas pleaded not guilty to campaign finance violations.
"I don't even know, because I have never met Parnas ... it's a great question because many people want to know, including myself," said Nunes, adding that his office has not been able to independently confirm that these calls actually took place.
On Thursday, Wall Street Journal columnist and editorial board member Kimberley Strassel wrote, "If nothing else, Mr. Schiff claims the ignominious distinction of being the first congressman to use his official powers to spy on a fellow member and publish the details."
However, the judge argues that while Schiff may run afoul of congressional ethics investigators, he is immune from any criminal penalties.
"Whatever Congressman Schiff does in the furtherance of the impeachment inquiry is protected by what is called the 'speech and debate clause' of the constitution. The clause protects the words and written works of members of Congress ... they can't be prosecuted, they can't be sued, and they can't be disciplined. That does not mean that it's moral or that it is appropriate or that it is ethical. It just means that he's immune from the legal consequences of it."
On Napolitano's Fox Nation show on Thursday, he spoke to Rep. John Garamendi, D-Calif., about the Democrat's impeachment push, before House Speaker Nancy Pelosi announced that she instructed House committees investigating President Trump to proceed with the writing up of articles of impeachment.
Garamendi addressed the possibility that Democrats may revive the contents of former Special Counsel Robert Mueller's Russia investigation.
"The first time we heard that mentioned as a potential basis for an article of impeachment was during one of the hearings earlier this week," Napolitano said. "Are the Democrats now thinking about articles of impeachment from behavior outside of Congressman Schiff's 300-page report?"
"I don't know what the committee will ultimately decide to do, but for me, the Muller report was very consequential," said Garamendi. "I do think it's very, very important that we recognize that that is also a fundamental issue."
Napolitano then asked about the timing of the House vote, and whether it could happen before Christmas.
"Certainly, the answer is yes," acknowledged Garamendi, though he conceded that Democrats have been accused of speeding through the process. "There is a question and this was raised by the Republican witness this week in the Judiciary Committee hearing that he said that we're moving too fast. So that's an open question."
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