President Donald Trump has reportedly thrown his support behind the movement to #ReleaseTheMemo. It’s perhaps not surprising that a trending Twitter campaign has received a warm welcome in this Oval Office. But there’s a reason that sensitive national security decisions aren’t typically made based on 280 characters: Such decisions are complicated, and they often implicate issues not present on their face. Releasing the classified memo, which was written by staff members for House Intelligence Committee Chairman Rep. Devin Nunes (R-Calif.), is just such an issue. That’s why, if reports are accurate that the president favors releasing the memo without an official classification review, that process itself raises significant concerns—with respect to both the protection of sensitive government information and the broader defense of a proper separation of powers.
First, a bit of background: The Nunes memo is reportedly a four-page document that is supposed to show various alleged intelligence collection abuses tied to the Russia investigation and the Trump campaign. Although reports indicate that the document consists of partisan talking points crafted to cast undue aspersions on the work of the Justice Department, there has been an increasing groundswell of support—fueled, in part, by the #ReleaseTheMemo Twitter campaign noted above—for making the memo available to the public. The Justice Department’s Assistant Attorney General for Legislative Affairs has formally written to Congress to say that the document’s release without proper classification review would be “extraordinarily reckless.” Nonetheless, press reports now suggest that the president, through his Chief of Staff, retired Gen. John Kelly, has made clear to Attorney General Jeff Sessions that the president wants the memo released—without any review for classification by the executive branch. And the White House Deputy Press Secretary, Raj Shah, appeared to confirm on Monday morning that “[t]he Department of Justice doesn’t have a role in this process.” In fact, the FBI itself has yet even to see the memo, let alone consider with interagency partners its potential release in light of classification concerns.
I don’t know what the Nunes memo says. I also don’t know if the press reports accurately recount the state of affairs in terms of how the executive branch might approach the memo’s release; indeed, even according to those reports, the president’s directive was conveyed to Sessions almost a week ago, and yet the House Intelligence Committee still hasn’t voted on whether to release the memo, though a vote may occur as soon as Monday evening. But, as a former government national security lawyer, I think it’s important to emphasize that, if the executive branch were to follow the process that has been reported—i.e., allowing the Congress to release the memo without any executive branch classification review—it would be deeply problematic.
A good starting point for thinking about this issue involves recalling that it is the executive branch that originates classification decisions. As the Supreme Court has explained, the president’s “authority to classify and control access to information bearing on national security . . . flows primarily from th[e] constitutional investment of power in the President, and exists quite apart from any explicit congressional grant.” Consistent with this, the executive branch’s longstanding position is that Congress (and the courts) should allow the executive branch to perform a declassification review of any information currently labeled and treated as classified before it is released to the public. In fact, I’m not aware of a single instance in which the executive branch has encouraged Congress to release such information without any review of that information by the executive branch for classification concerns, which could at least yield redactions in what’s ultimately released.
Consider, by way of contrast, the approach the executive branch took with respect to the Senate Intelligence Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program (better known as the “SSCI RDI Report”) and the infamous “28 Pages” from the congressional Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of September 11. (Full disclosure: I was working in the executive branch during the declassification process related to both documents.) Even as Congress had a say in the release of both documents, given that they were “work product” of the Hill so to speak, the executive branch nevertheless made quite clear that it—the executive branch—was responsible for classification review of both documents. My understanding is that the same approach applied to earlier releases, such as the publication of the 9/11 Commission Report.
To be sure, the role of the executive branch in the release of congressional documents isn’t always a tidy one. In the case of the SSCI report, tensions over the scope of proposed redactions became so heated as to require personal negotiation between the president’s chief of staff and the SSCI chair. Congress is entitled to ask tough questions when its material is at issue. And the executive branch is entitled to give tough answers about the information it has labored to acquire and pledged to protect.
But a process in which the executive branch plays a constructive but firm role is far preferable to any alternative. The longstanding approach allows experts from across the national security parts of the government—including the civil servants who remain the backbone of our federal government—to assess whether the release of any particular information would harm national security and, if so, to propose redactions to address that risk. Moreover, the traditional approach protects the president’s long-recognized authority to control classified information and access to it, because it’s ultimately the executive branch whose information is at stake and which is therefore best placed to make those tough, high-stakes calls. In the words of the Supreme Court, “The authority to protect [classified] information falls on the President as head of the Executive Branch and as Commander in Chief.”
The authority—indeed, the responsibility—to protect national security information is one on which the presidency has long been charged and has long relied. And, while I’m a proponent of responsible transparency, I’ve also seen firsthand that this authority is one on which the executive branch must, at key moments, rely in the interests of protecting our nation. It certainly isn’t authority that should be surrendered lightly—especially for political expediency.
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