Oversight Override

The White House response to the Nunes memo contained a sneaky legal ploy to undermine Congress.

Don McGahn, lawyer for Donald Trump and his campaign, leaves the Four Seasons Hotel after a meeting with Trump and Republican donors on June 9, 2016, in New York City.
Don McGahn, lawyer for Donald Trump and his campaign, leaves the Four Seasons Hotel after a meeting with Trump and Republican donors on June 9, 2016, in New York City.
Drew Angerer/Getty Images

Late on a Tuesday evening in 1971, Sen. Mike Gravel (D–Alaska), the chairman of the Senate Public Works Committee, made a motion to enter the Pentagon Papers into the committee’s official record, making one of the most important disclosures in United States history. There was no objection, as no other member of the Senate was present, and thus the government’s secret history of the Vietnam War entered the public record for everyone to read in full.

When the Justice Department impaneled a grand jury to investigate Sen. Gravel and his staff for possible criminal conduct, the Supreme Court voted 5–4 to quash the agency’s effort to subpoena his legislative aide for performing his legislative duties, saying it was “incontrovertible” that the Speech or Debate Clause of the Constitution “protects [Gravel] from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record.”

In 2018, 47 years after this milestone in Congressional oversight, White House counsel Don McGahn moved to undermine Congress’ ability to publicly release classified information on its own accord.

As a matter of constitutional law, either chamber of Congress can release classified information to the public over the president’s objection. While the House and Senate have imposed an onerous process on themselves before that release can happen, these limitations are a function of House and Senate rules and are not otherwise limited.

Yet buried in the White House and House Intelligence Committee’s back-and-forth over the Nunes memo, is a new effort to weaken Congressional oversight and misdirect Congress. McGahn’s cover note released with the Nunes memo essentially asserts, without stating directly, that the House or Senate’s release of classified information to the public may happen only at the sufferance of the executive branch. This is a misreading of the law and a misunderstanding of Congress’ role as a co-equal branch of government with oversight powers over the executive.

On this point, McGahn’s memo boils down to four assertions, either directly or by implication:

First, McGahn asserts the executive branch has primacy on national security matters. He flatly asserts the Constitution vests the president the authority to protect national security secrets from disclosure. There is no citation for this point or acknowledgement of Congress’ role.

Second, McGahn implies the executive branch may precondition providing classified information to Congress. He says the executive branch had provided Congress with information “on the assumption the Committee will responsibly protect such classified information.” Moreover, McGahn asserts that the executive branch provided information to “facilitate appropriate Congressional oversight.”

Third, McGahn implies that Congress’ power to release classified information is somehow weak. He points to the unilateral release of classified information by Congress as “extremely rare” and “raises significant separation of powers concerns.”

Finally, McGahn asserts the White House can overrides Congress’ processes to release classified information. To that end, McGahn flatly states “the Committee’s request to release the Memorandum is interpreted as a request for declassification pursuant to the President’s authority.”

When read together, these assertions could be viewed as an attempt to pre-empt further releases of information by Congress, either by claiming such efforts are not legitimate (or somehow are unconstitutional) or by refusing to provide information demanded by Congress.

These assertions are flat out wrong.

First of all, Congress and the executive branch share responsibility on national security matters. National security is not vested solely in the hands of the president. Article I of the Constitution states that it is Congress’ responsibility to “provide for the common defense and general welfare of the United States” and “make all laws” that are “necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States.”

Secondly, McGahn’s suggestion the White House can impose preconditions on Congress’s access to classified information is inapt. As explained in this Congressional Research Service report, “Congress’s authority and power to obtain information, including classified and/or confidential information, is extremely broad.” It should be noted that when it comes to classified information, “neither claims of executive control over national security documents, nor congressional assertions of access are absolute.” As a practical matter, the legislative and executive branch often reach accommodations about what will be disclosed. But that does not preclude Congress from demanding information it deems necessary for its legislative and oversight function, nor from releasing such information should it deem it necessary. Congress has other mechanisms to pressure the executive branch into accommodating these demands, such as through the appropriations process, holding up nominations, and so on.

When talking about disclosure, we must remember the classification system is a regulatory process developed by the Executive Branch for the Executive Branch, ostensibly pursuant to authority granted by Congress. It does not apply to Congress, except to the extent they wish it to. According to CRS, the president began playing a significant role in classification in 1940, relying on a 1938 law. Congress retains the power to oversee and dictate how the classification system works, such as in this 2010 law on reducing overclassification. A December 2016 House Oversight and Government Reform Committee hearing on overclassification concluded that “federal agencies over mark documents classified and withhold information for decades simply because they contain embarrassing material.” And yet, the federal government spent more than $100 billion during the last 10 years on security classification activities, with an estimated 50 to 90 percent of classified material not properly labeled.

As a result of its 1970s investigations into illegal activities by U.S. intelligence agencies, Congress created the House and Senate intelligence committees as well as a new mechanism for lawmakers to release classified information to the public. These new committees were created to serve as proxies for the American public, designed as skeptical overseers of the intelligence agencies that committed terrible abuses. The disclosure process, meanwhile, was designed to prevent another unilateral disclosure by a lone lawmaker while maintaining Congress’ prerogative to release information to the public.

Those of you tracking the Nunes memo news last week might be familiar with this process. The House or the Senate intelligence committee must vote to release information, including classified materials, to the public. Next, the president has five days to object on the basis that the threat to the national interest in release outweighs any public interest. If he does not object, the committee releases the information. If the president objects, the committee holds another vote to send it to the floor. Finally, the full chamber then can vote to release.

Third, as illustrated by both Sen. Gravel’s example and the House and Senate rules, Congress has plenary power to release classified information. The Speech or Debate Clause protects members of Congress and their staff when they discuss classified information, including in public setting, from prosecution or investigation originating outside of Congress so long as it is done within the scope of their legislative duties.

Finally, the White House’s decision to treat Congress’ release of the Nunes memo as a “declassification request” is an attempt to undermine Congress and our system of checks and balances. Pursuant to House rules, the House Intelligence Committee asked the president to state in writing whether he had a concern with Congressional release of information. This is much different than asking for permission to release the memo, as McGahn’s use of the term “request” might have his readers believe.

Furthermore, the Nunes memo is a Congressional document, not an Executive Branch document. After the president’s response, the House Intelligence Committee should not have marked it as unclassified when it published it. Marking the document classified or unclassified is an executive branch function. It should have released it as the committee approved it. Furthermore, the House should have published the document unaltered after the expiration of the five days required by its rules, pursuant to the direction of the committee. This would have been in accordance with how the House rules dictate that classified material is released to the public.

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