How Did Nunes Do It?

February 2, 2018–In June of last year I posted an Electronic Briefing Book at the website of the National Security Archive (No. 596, June 2, 2017) describing in full detail the origin of the House of Representatives rule which Devin Nunes used to get his memo released. I have had the paper re-linked at the Archive website, and a blog piece on the original events will be up shortly on the Archive’s blog, Unredacted. What happened here is that a mechanism designed to prevent the executive branch of government from compromising a congressional inquiry has been used by a politician to have Congress impede an executive branch agency from completing its investigation of the president.

Section 7 of Rule XVLIII, the congressional bylaw, applies to any information. Only a majority vote within the committee is necessary to reveal the information unless the president, in writing, objects. That latter action would activate a detailed process under which there would be a House vote, involvement by House officials, etc. None of these recourses apply in the event of a committee majority vote, which is how Mr. Nunes could, essentially, decide to unilaterally release what amounts to a political smear. The same House intelligence committee majority enabled Mr. Nunes to guarantee that a Democrat-authored rebuttal memorandum cannot see the light of day.

Note that, in his White House reply to Mr. Nunes, presidential counsel Donald F. McGahn, II, cites House clause 11(g) of Rule X as the authority, and asserts a presidential responsibility to classify, declassify, and control access to information. This represents an attempt to undermine the original intent of the congressional rule, which was created to prevent a president from suppressing congressional action in situations where underlying information was secret.

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