The Nunes memo’s biggest casualty: Credible congressional oversight
© Greg Nash

The “Nunes Memo” attacking the FBI and the Foreign Intelligence Surveillance Act (FISA) process was finally made public late last week, and the endless partisan back-and-forth over the legitimacy of its claims is, slowly, tapering off. That makes this a good time to ask larger, more important questions. Specifically, has the process leading to the release of the memo severely compromised the House’s oversight powers and credibility? Yes.

To be clear, I’m not referring to the daily partisan verbal warfare waged between House Permanent Select Committee on Intelligence (HPSCI) Chairman Devin NunesDevin Gerald NunesThree key behind-the-scenes figures in Jan. 6 probe Pentagon watchdog finds NSA properly sidelined GOP operative hired as top lawyer News organizations, journalists ask court to review decision on Nunes lawsuit MORE (R-Calif.) and the ranking member Adam SchiffAdam Bennett SchiffAll eyes on Garland after Bannon contempt vote House votes to hold Bannon in contempt of Congress The Hill's 12:30 Report - Presented by Altria - Manchin heatedly dismisses rumors of leaving Democratic Party MORE (D-Calif.). While Nunes’ overall conduct in the affair was worse than Schiff’s, neither man acquitted himself well on substance. But it was their immediate superiors—Speaker Paul RyanPaul Davis RyanJuan Williams: Pelosi shows her power Cheney takes shot at Trump: 'I like Republican presidents who win re-election' Cheney allies flock to her defense against Trump challenge MORE (R-Wis.) and Minority Leader Nancy PelosiNancy PelosiDems look to keep tax on billionaires in spending bill Sunday shows - Democrats' spending plan in the spotlight Pelosi won't say if she'll run for reelection in 2022 MORE (D-Calif.)—who allowed both men to stay in their respective leadership positions long after it was clear both should’ve been replaced by less partisan, more serious-minded legislators. The failure to do so has left the HPSCI “Russiagate” investigation in the hands of rabid partisans on both sides, a fact that will almost certainly taint whatever final committee report that emerges, if any.


While smaller in scale, the partisan meltdown in HPSCI over an alleged political domestic spying investigation reminded me of similar controversies in the 1970s. Then as now, the issue was this: Who has the authority to declassify relevant information—the president or Congress?

Article I, Section 5 of the Constitution is the only part of the nation’s supreme law that addresses the issue of government secrecy. The operative clause reads thus: “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy;”

When it comes to the classification or declassification of congressional work product, the Constitution is clear—Congress makes the call.

Why then did Nunes and Ryan feel the need to submit what was, by definition, a congressional document to President TrumpDonald TrumpSix big off-year elections you might be missing Twitter suspends GOP Rep. Banks for misgendering trans health official Meghan McCain to Trump: 'Thanks for the publicity' MORE for a declassification review?

The memo itself contained no executive branch-originated intelligence reports or documents. It contained no quotes or extracts from classified FBI or NSA documents. It is these two categories of information, when contained in House or Senate reports designed to be made public, that can cause a genuine separation of powers flare up between the White House and Congress. During the investigations in the 1970s into domestic spying by the CIA, NSA, and FBI, the leaders of the House investigative committee, Rep. Otis Pike (D-N.Y.) made a mistake his Senate counterpart, Frank Church (D-Idaho) avoided.

In a now-infamous incident known as the “September compromise,” Pike agreed to allow the Ford administration to make the call about what executive branch documents could or could not be made public. When Pike moved to finalize his committee’s report and make it public in January 1976, Ford persuaded the House to block publication on the grounds that the entire Pike Committee report was a classified document. In contrast, the Senate refused to submit the Church Committee report for Ford’s review and published its findings in April 1976. Constitutionally, Church and his colleagues made the right call, Pike’s House colleagues the wrong one.

It’s clear that if they paid any attention at all to this history, Speaker Ryan and HPSCI Chairman Nunes learned the wrong lesson. The decision by Ryan and Nunes to give the Trump White House control over the release of a purely congressional document has set a dangerous new precedent.

A document that was exclusively a HPSCI work product, meant originally just for HPSCI GOP members and which contained no executive branch classified documents or excerpts, was voluntarily handed over to President Trump for a “declassification review.” The real purpose, of course, was to make sure the document as written conformed to Mr. Trump’s narrative on the “Russiagate” scandal. By voluntarily violating the separation of powers in this way, Ryan and Nunes have trashed the House’s executive branch intelligence oversight capacity in the service of a purely partisan political agenda. Church and Pike would be appalled.

Eddington is a policy analyst in civil liberties at the Cato Institute, from 2004-2014 he served as a senior House intelligence policy staffer to then-Rep. Rush HoltRush Dew HoltState sanctioned secrecy: NSA's criminality shield Who should fund US research and development? Trump’s choice for science adviser should be confirmed MORE (D-N.J.).