February 10, 2018–If this were Sherlock Holmes we would call it “The Case of the Disappearing Memos.” But it’s today’s America instead, where government regulations can be turned on their heads and run in reverse. –And no one says anything. To recapitulate–in the House Permanent Select Committee on Intelligence (HPSCI) the Republican majority and Democratic minority each crafted memoranda on the scandal of the Russian Caper (commented on here on many occasions). The Republicans were ready first, with a paper that essentially smeared the Federal Bureau of Investigation (FBI). Horrified Democrats then wrote their own paper to show how and why the Republican essay was a smear job.
We’re talking here about documents that contain classified information. A procedure exists whereby the HPSCI–and its Senate counterpart–can decide on their own to declassify information. About a week ago the Republican memo appeared. HPSCI had used the procedure I mentioned but not in the way it was intended when established forty years ago. The original mechanism provided the committee could vote to release a document and the president would then have five days to express himself yea or nay on its release. If a president kept his silence, the document was released. If the president objected, the committee could then go to the full House (or Senate) for an up or down vote on release. The document would then be declassified or not depending on the result. (You can go to the National Security Archive website, look for my “Electronic Briefing Book no. 596” on the Pike Committee of 1975, and read as much as you want about how this procedure was established–as a safeguard against the executive branch using secrecy to suppress congressional investigation.)
That’s not what happened here. Instead the Republican majority voted along party lines to release their own memo, and acquiesced when the Trump White House took the opportunity to assert the power to edit the document for content on secrecy grounds. As a smear on the FBI, of course, Mr. Trump found nothing to object to and he happily approved release. But the cover letter from White House lawyer Donald McGahn asserted the declassification power mentioned. Democrats on HPSCI then demanded their competing paper be released. I had expected this bid would be defeated at the committee level by adverse vote but the GOP was a little smarter than that–they voted with Democrats to approve release unanimously. Republicans were confident the Trump White House could be depended upon to quash the paper for them. That happened yesterday. We can now rank HPSCI chairman Devin Nunes with the Ghosts of Langley.
McGahn pontificates that Mr. Trump is “inclined” toward release of the Democratic rebuttal if it can be shorn of classified information where, in truth, the president has no authority to audit/edit the content of a document being released by congressional committee vote.
The HPSCI Republican memo is rapidly sinking out of sight due to its disjointed substance and lack of coherence. The Democratic memo is being sunk deliberately.