Last week Donald Trump released the un-redacted Nunes Memo over the objections of the FBI and Department of Justice. On Friday he refused to allow the release of 10 page Democratic response which had been vetted by the DOJ and FBi, probably because it would make Trump and Nunes look like the fools they are. Trump and the his Republican enablers thought that would be the end of it. The Democratic memo may see the light of day. According the Mark Lederman at Just Security, it is up to the House Intelligence Committee whether or not to make a classified memo public.
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.
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.
Trump has not responded in writing with his specific objections. The letter sent by White House Counsel Doug McGahn stated that Trump objected to the memo release and that the memo should be vetted by the FBI and DOJ to make redactions or edits that will “mitigate” any possible harm. which is what Representative Adam Schiff (D-CA) stated was being done.
Constitutional law professor Lawrence Tribe told MSNBC host Joy Reid that, since the committee has already voted unanimously to release the memo, the ball is now entirely in their park.
Question is wll the House rise to its responsibilities or continue to abdicate its powers to this wanna be despot in the Oval Office.
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