Nunes

The FISA Follies: The “Schiff Memo” Edition

On Saturday (Feb. 24), House Intelligence Committee Democrats were finally able to publish their rebuttal to the “Nunes Memo” written by the committee’s GOP majority staff and released earlier this month. So what have we learned from this Democratic rebuttal memo? As it turns out, not much we didn’t already know—though you wouldn’t get that impression from the media’s reaction to and characterization of the “Schiff Memo” following its release. 

NPR’s Philip Ewing and his editors preferred to treat the dueling memos episode as a game:

The more a game is played, the more adept teams become at its rules and strategies. Basketball defenders deliberately foul an opponent to force a free-throw. A manager brings up a left-handed reliever to pitch inside to a dangerous left-handed hitter.

The Republican memo gambit and last weekend’s Democratic riposte complete the first enactment of what could become a recurring sideshow inside Washington. The majority uses its control of the committee and its alliances inside the executive branch to release an unexpurgated file even if some of the relevant agencies object—as the FBI and Justice objected to the release of the Nunes memo.

The minority can’t twist the arms of the agencies controlled by its opponents and it can’t get parity with the opening shot: Nunes’ memo was released by lunchtime on a Friday following a week of extensive coverage. Schiff’s memo came out with no preliminary fanfare on a Saturday afternoon.

So will this be the template for each game? Or will Nunes and Schiff take a different approach next time? And with the rules more or less set, how will other players respond? Round Two is already different: Nunes suggested he was preparing another memo about what he calls problems with President Obama’s State Department. So a former State official wrote a column in the Washington Post that tried to short-circuit that attack.

So for NPR, allegations of FBI/DoJ potential misuse of the FISA process is like watching a Wizards-Celtics match-up on ESPN.

The FISA Follies: “War of the Memos” Edition

As I was preparing for a Demand Progress-sponsored panel on Congressional oversight of intelligence matters on the afternoon of February 9, Demand Progress Policy Director Daniel Schuman and I agreed that if President Trump was going to refuse to “declassify” the House Intelligence Committee Democrats rebuttal to the “Nunes Memo,” he would wait until the late Friday news cycle to do it. We didn’t have to wait long for that prediction to come true

In a moment, I’ll get to the issue of whether Trump actually has the authority under the Constitution to do what he did, but I want to start with is this paragraph from the New York Times story referenced above:

But Donald F. McGahn II, the president’s lawyer, said in a letter to the committee on Friday night that the Democratic memo could not be released because it “contains numerous properly classified and especially sensitive passages.” He said the president would again consider making the memo public if the committee, which had approved its release on Monday, revised it to “mitigate the risks.”

In that same NYT story, House Intelligence Committee ranking member Adam Schiff provided further context:

In a statement on Friday night, Mr. Schiff said that Democrats had provided their memo to the F.B.I. and the Justice Department for vetting before it was approved for release by the committee. The Democratic memo was drawn from the same underlying documents as the Republican one.

“We will be reviewing the recommended redactions from D.O.J. and F.B.I., which these agencies shared with the White House,” Mr. Schiff said, “and look forward to conferring with the agencies to determine how we can properly inform the American people about the misleading attack on law enforcement by the G.O.P. and address any concerns over sources and methods.”

So if Schiff is to be believed, House Intelligence Committee Democrats ran their memo by Justice Department and FBI officials prior to the unanimous committee vote to release his memo, then sent the memo over to the White House for reaction. Trump and his team then demanded still more redactions. If the above account is correct, the same Justice Department or FBI officials who reviewed the original “Schiff Memo” apparently demanded still more redactions once it got to Trump’s desk.

It’s this sequence of events which brings me to the question of whether Trump has the authority under the Constitution to censor or rewrite Congressional work product, with or without Congressional assent, if it contains references to Executive branch information asserted as being classified, in part or in whole. The short answer is no. The longer answer is still no, but with some caveats.

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