Most news outlets, such as the New York Times, are reporting that President Donald Trump has “blocked” the House Permanent Select Committee on Intelligence (HPSCI) from publicly disclosing the Democratic memorandum rebutting Devin Nunes’s claims that FBI and other officials acted improperly in seeking FISA warrants concerning Carter Page.
That’s not right: The President doesn’t have the power to block the HPSCI from releasing its memo. Committee members, including Adam Schiff, will undoubtedly consult with DOJ and the FBI to make reasonable efforts to amend the memo so as not to burn any important sources or methods–something that Schiff himself recommended. Even so, it’s ultimately up to the Committee to decide whether to release the memo, and whether to redact certain classified information before doing so.
Tonight’s letter to HPSCI from White House Counsel Donald McGahn states that the memo in question includes certain information that the President declines to declassify, due to the determination of the Department of Justice that disclosure of that information would raise “especially significant concerns for the national security and law enforcement interests.” That’s the President’s prerogative. As I explained here back in 2014, however, the classification system merely regulates what Executive Branch personnel can do with information entrusted to them. It does not regulate what members, or committees, of Congress may lawfully do with such information.
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.
There are restrictions on the HPSCI’s dissemination of classified information, but those restrictions (and conditions) are self-imposed by the House itself. Rule X, Clause 11 of the House’s Standing Rules prescribes the process by which HPSCI may publicly disclose information in its possession. Clause 11(g)(1) provides that “[t]he select committee may disclose publicly any information in its possession after a determination by the select committee that the public interest would be served by such disclosure.” And the Committee unanimously voted on Monday–21 to zero–that the memo should be released because public disclosure would be served by such disclosure.
To be sure, Clause 11(g)(2)(A) further provides that if any of that information “has been submitted to [HPSCI] by the executive branch,” if it “has been classified under established security procedures,” and if “the executive branch requests [that it] be kept secret,” HPSCI must notify the President of its decision to disclose the information, and may not disclose it for at least five days after such notification. If, during that five-day period–which expires Saturday, February 10–the President, “personally in writing,” notifies HPSCI that he objects to the disclosure, provides his reasons therefor, “and certifies that the threat to the national interest of the United States posed by the disclosure is of such gravity that it outweighs any public interest in the disclosure,” then HPSCI may not disclose the classified information without first submitting the question to the full House.
President Trump, however, has not made any notification “personally in writing.” Nor has his Counsel, Doug McGahn (let alone the President personally), even represented that “the threat to the national interest of the United States posed by the disclosure is of such gravity that it outweighs any public interest in the disclosure.” Accordingly, unless the President makes such a certification by February 10–personally in writing–HPSCI will be free under House rules to publicly disclose the Democratic memo, without making any redactions. [UPDATE as of February 11: I am not aware that the President made any such timely certification.]
Which does not mean that HPSCI should simply release the memo. At its Monday meeting, Representative Schiff specifically said that he wanted the FBI and DOJ to vet the document to ensure it doesn’t reveal any sources and methods that ought to remain secret (see pp. 13-14, 17). According to McGahn’s letter, that’s exactly what has now happened: McGahn included a letter from FBI Director Wray and DAG Rosenstein explaining to HPSCI the possible harms of disclosure of some of the information in the Democratic memo. He also wrote that the President “encourages” HPSCI to work with DOJ and the FBI to make redactions or edits that will “mitigate” any possible harm. Presumably, members of HPSCI will now engage in just such consultation, as they should, before the Committee releases the memo. [UPDATE: Rep. Schiff issued a statement tonight, Friday, February 9: “We will be reviewing the recommended redactions from D.O.J. and F.B.I., which these agencies shared with the White House, and look forward to conferring with the agencies to determine how we can properly inform the American people about the misleading attack on law enforcement by the G.O.P. and address any concerns over sources and methods.”]
It is, however, up to the Committee itself, not the President, whether and in what form to eventually release the memo.
February 9, 2018