The White House left a secret subtext in the Nunes memo that they could later use to undermine Congress
Rep. Devin Nunes (left, R-CA) and President Donald Trump (right). Images via Creative Commons.

The White House included a portion meant to undermine Congressional oversight when releasing the House Intelligence Committee's controversial memo alleging abuses at the FBI and Justice Department.


"Public release of classified information by unilateral action of the Legislative Branch is extremely rare and raises significant separation of powers concerns," White House counsel Don McGahn wrote in the cover letter addressed to House Intelligence Committee Chairman Devin Nunes (R-CA) when declassifying the memo last Friday.

As Slate reported, this portion "buried" within McGahn's cover letter acts as a means to undermine Congress' ability to release information without the president, and suggests "the House or Senate’s release of classified information to the public may happen only at the sufferance of the executive branch."

Slate's Daniel Schuman broke McGahn's argument into four assertions: that the executive branch "has primacy on national security matters" and is tasked with providing classified information to Congress, that "Congress’ power to release classified information is somehow weak" and that the White House can override Congress when releasing classified information like the contents of Nunes' memo.

"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," Schuman wrote.

"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," he continued. "These assertions are flat out wrong."

Schuman went on to argue that Congress and the executive branch "share responsibility on national security matters." Congress' power to release classified information separate from the White House was protected after Sen. Mike Gravel (D-AK), then the chairman of the Senate Public Works Committee, made a single-man motion to read the Pentagon Papers on the Senate floor in 1971. When he and his staff were tried before a grand jury for releasing that information, the Supreme Court voted 5-4 that they were protected by the Speech or Debate Clause of the Constitution.

Read Schuman's entire analysis of McGahn's "sneaky legal ploy" via Slate.