The White House response to the Nunes memo contained a sneaky legal ploy to undermine Congress.

[DonViejo]

Oversight Override

The White House response to the Nunes memo contained a sneaky legal ploy to undermine Congress.

By DANIEL SCHUMAN

FEB 08, 20181:39 PM

This piece was originally published on Just Security, an online forum for analysis of U.S. national security law and policy.

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Yet buried in the White House and House Intelligence Committee’s back-and-forth over the Nunes memo, is a new effort to weaken Congressional oversight and misdirect Congress. McGahn’s cover note released with the Nunes memo essentially asserts, without stating directly, that the House or Senate’s release of classified information to the public may happen only at the sufferance of the executive branch. This is a misreading of the law and a misunderstanding of Congress’ role as a co-equal branch of government with oversight powers over the executive.

This is a misreading of the law and a misunderstanding of Congress’s role as a co-equal branch of government. On this point, McGahn’s memo boils down to four assertions, either directly or by implication:

First, McGahn asserts the executive branch has primacy on national security matters. He flatly asserts the Constitution vests the president the authority to protect national security secrets from disclosure. There is no citation for this point or acknowledgement of Congress’ role.

Second, McGahn implies the executive branch may precondition providing classified information to Congress. He says the executive branch had provided Congress with information “on the assumption the Committee will responsibly protect such classified information.” Moreover, McGahn asserts that the executive branch provided information to “facilitate appropriate Congressional oversight.”

Third, McGahn implies that Congress’ power to release classified information is somehow weak. He points to the unilateral release of classified information by Congress as “extremely rare” and “raises significant separation of powers concerns.”

Finally, McGahn asserts the White House can overrides Congress’ processes to release classified information. To that end, McGahn flatly states “the Committee’s request to release the Memorandum is interpreted as a request for declassification pursuant to the President’s authority.”

When read together, these assertions could be viewed as an attempt to pre-empt further releases of information by Congress, either by claiming such efforts are not legitimate (or somehow are unconstitutional) or by refusing to provide information demanded by Congress.

These assertions are flat out wrong.

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more
https://slate.com/news-and-politics/2018/02/the-white-house-response-to-the-nunes-memo-contained-a-sneaky-ploy-to-undermine-congress.html

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1. Collusion between these two separate branches of government needs another special counsel