It’s anyone’s guess whether or not Congressman Adam Schiff’s memo will see the light of day at the moment. White House Counsel Donald McGahn told the House Intelligence Committee on Friday there was no chance the Administration would approve the release of the Schiff memo because it contains, “numerous properly classified and especially sensitive passages.” McGahn did suggest the committee work with the Justice Department to revise the memo so it could be released. President Donald Trump tweeted a similar suggestion Saturday morning, with Schiff responding by basically saying he had the facts, and the GOP memo was released despite the FBI having issues with it.
I wrote February 2nd the Nunes memo should be released because it could encourage political transparency. I feel the same way about the Schiff memo. There’s no doubt both memos are political documents, but it’s still extremely important for the American people to see what the intelligence community is doing, even within the lens of partisanship. There’s still a certain sense of irony/ire on my part since Schiff and Nunes both approve of #FISA702, but are now arguing for transparency. If only this discussion had happened before the #FISA702 vote, and not after, but it’s government where “transparency” is a dirty word once elections are over and done with (see Georgia where the AG claimed only 260 open records requests were made last year when a lot more were made, and not included on the list). It’s beyond frustrating, and Jazz is right in declaring this entire thing is turning into a circus, instead of being something of public interest. Politics, man.
There’s an even bigger question which appears to be missing in the actual discussion on the memos: who has the actual power to make the memos public? Congressional Republicans and the White House believe it’s up to the presidency to determine if the memos get released. However, Cato’s Patrick Eddington believes letting the Administration put the final stamp of approval on the memos violates the Constitution (Via The Hill).
Article I, Section 5 of the Constitution is the only part of the nation’s supreme law that addresses the issue of government secrecy. The operative clause reads thus: “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy;”
When it comes to the classification or declassification of congressional work product, the Constitution is clear—Congress makes the call.
Why then did Nunes and Ryan feel the need to submit what was, by definition, a congressional document to President Trump for a declassification review?
The memo itself contained no executive branch-originated intelligence reports or documents. It contained no quotes or extracts from classified FBI or NSA documents. It is these two categories of information, when contained in House or Senate reports designed to be made public, that can cause a genuine separation of powers flare up between the White House and Congress
Eddington believes Nunes and House Speaker Paul Ryan have further muddied the separation of powers lines by asking the White House to be a-OK with the memo’s release. It means submitting the Schiff memo to the White House is muddying the lines even more, and could expand executive power even further. It really is a dangerous precedent, if Eddington is correct in his analysis.
Eddington’s theory is backed up by Marty Lederman at Just Security who writes the Committee is the only place which has the power to release the memo, not the White House, and blasts McGahn for suggesting it had to go through Trump first.
McGahn writes that if the legislative branch “unilaterally” releases classified information, it would raise “serious separation of powers concerns,” citing Department of Navy v. Egan, 484 U.S. at 527. Egan, however, simply recognizes that the President has a constitutional authority “to [i] classify and [ii] control access to information bearing on national security and [iii] to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information.” Neither Egan nor any other case suggests, let alone holds, that the President has constitutional authority to restrict Congress’s disclosure of such information. Cf. also id. at 530 (“unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs”). And therefore no Executive orders or other presidential actions even purport to impose such restrictions on the Congress.
Lederman still wants Schiff to talk to the FBI and DOJ if anything needs to be redacted, which Schiff told CBS he’d do, and has done, without a problem. He also complained the Nunes memo was a partisan document.
Both documents are partisan documents, but the Schiff memo should be made public and should be done without the White House’s approval. The Constitution gives Congress the power to release Schiff’s memo, and the Nunes memo, and not the White House. The committee has already voted in favor of releasing Schiff’s document, and should make it public, regardless of its partisanship. Let’s be more transparent, and not just because it’s an election year.