Devin Nunes and the Chamber of Secrets: Congress's Power of Declassification

Last week, the House Permanent Select Committee on Intelligence (HSPCI) released a heavily redacted Democratic staff memorandum about the ongoing Russia investigation. The effort to release the memo created the potential for a constitutional conflict between the President and Congress over who has authority to release information that the executive branch has classified. Ultimately, these two branches cooperated, and so this fundamental question of constitutional authority remains unresolved.

The Democratic memo in question was a response to another memorandum by Republican HSPCI staff that was declassified by the President and made public on February 2. That memo made inflammatory allegations of wrongful behavior by FBI officials while investigating Carter Page, a one-time Trump campaign aide. With both memos, the HSPCI invoked a previously-unused rule that dates back to the committee's creation in 1977, which authorizes classified information to be made public even without declassification by the executive branch. Ultimately, the committee's Democrats agreed to work with the executive branch to redact elements of their memo in order to secure declassification. The effort succeeded this time, but this episode raises an important question: Does Congress have the authority to release a classified document against the wishes of the sitting President?

The executive branch has often asserted that it has the exclusive prerogative to classify-and declassify-documents pertaining to national security. And indeed, federal standards for classification are determined solely by executive order. The current version of this order, issued by President Barack Obama in 2009, clearly asserts exclusive executive branch power to declassify information, citing both statutory and constitutional authority.1

Nonetheless, both the Senate and the House have established procedures for unilaterally publishing classified information. These procedures have existed since the chambers created their respective committees tasked with overseeing the intelligence community: the HPSCI and the Senate Select Committee on Intelligence (SSCI). House Rule 11(g)(1) specifies that when HPSCI votes to declassify documents it must notify the President, who then has five days to notify the Committee of any objections "personally in writing." If the President objects, a majority vote by the Committee may then take the issue to the House for a final vote. If the House votes affirmatively, the information may be disclosed despite Presidential opposition, and without putting the question to the Senate. SSCI rules detail a comparable procedure.

Neither the House nor the Senate rules explicitly cite Constitutional authority for the exercise of this power. Whether they do, in fact, have the Constitutional power to disclose classified information pertaining to national security is a timely and unsettled question of importance.2 Even those who supported the creation of the intelligence committees during the 1970s apparently never expected this declassification power to ever be exercised against the President's wishes.3 So far, that prediction remains true-and as a result, Congress's power of unilateral disclosure remains untested.

If necessary, Congress should proceed to disclose without the President's approval. We believe it does have this constitutional authority. The original proponents of the HSPCI and SSCI correctly understood that Congress has an important structural role to play in restraining executive power, particularly where claims of national security are asserted. Congress must not simply defer to the President whenever he or she invokes the talisman of "national security." Doing so would undermine its status as a co-equal branch of government.

Senator Frank Church, who also chaired the Church Committee to investigate abuses by intelligence agencies, made this argument powerfully in his remarks during the debate on the creation of the SSCI: "The constitutional system of the United States is best suited to make national decisions through open discussion, debate and the airing of different points of view. . . . Inevitably, there will be differences between the Executive and the Legislature as to whether the national interest is served by maintaining secrecy in particular cases or whether the usual constitutional process of open debate and public scrutiny should prevail."4 Absent any legislative or judicial check on executive power, a President could theoretically stifle any and all information under the guise of national security, flouting democratic principles.

The Supreme Court has never directly adjudicated the relative classification powers of the branches of government. It has indirectly touched on the question of classification powers in three cases, on which the executive branch has firmly but perhaps erroneously relied to support its claim to exclusive power. If anything, each of these cases leaves room for the possibility of Congressional power.

First, the Department of Justice has often cited Department of Navy v. Egan, 484 U.S. 518 (1988), in support of the assertion that executive classification authority exists apart from any congressional grant.5 The Court, however, observed that the judiciary has "been reluctant to intrude upon the authority of the Executive in military and national security affairs unless Congress specifically has provided otherwise." Id. at 530 (emphasis added).6 Second, the Office of Legal Counsel to the CIA has relied on a decision in American Foreign Service Association. v. Garfinkel, 490 U.S. 153(1989), for the proposition that the President's power over national security information cannot be tread on by permitting a lower ranking member of the executive branch to share classified information with Congress without official authorization. However, this case was ultimately not decided on its merits, and scholars have pointed out that the Supreme Court specifically cautioned the District Court to not examine the relative constitutional authority of the executive and Congress unless absolutely necessary.7 Id. Finally, in EPA v. Mink, 410 U.S. 73, 83 (1973), the Supreme Court held, "Congress could certainly [provide] that the Executive Branch adopt new [classification] procedures or it could [establish] its own procedures-subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering," strongly indicating that the (de)classification is not the exclusive prerogative of the executive.

Of course, Congress should not release information potentially harmful to national security absent exceptionally good reasons. Flagrant partisan politicking certainly does not constitute "good reason." Without knowing the particular information in question, we have no way of knowing whether the information therein truly would harm national security in a meaningful way. Initially consulting with the Department of Justice and FBI about possible redactions is an eminently reasonable step.

Nonetheless, in future cases of congressional-executive disagreement, we urge Congress to release those documents which they have determined to be in the public interest and to not constitute a threat to national security. An affirmative vote by either the House or Senate to release such information would enshrine the principle that the co-equal branches of government have legitimate power to ensure public access to relevant information about how our republic functions. Our Constitutional government requires a willingness of the co-equal branches to engage in checks and balances with one another, and timely public access to critical information. A future Congress should take the opportunity to promote both of these goals. 

1  See Exec. Order. No. 13526, 75 Fed. Reg. 707 (Jan. 5, 2010) (stating, "(b) Information shall be declassified or downgraded by: (1) the official who authorized the original classification. . . (2) the originator's current successor in function, if that individual has original classification authority . . . (3) a supervisory official of either the originator or his or her successor in function . . . (4) officials delegated declassification authority in writing by the agency head or the senior agency official of the originating agency").

2  During a hearing on the resolution that would ultimately establish the HPSCI, Congressman Robert McClory (R-Ill.) shared the following objection: "In effect, the House would be capable of unilaterally determining what is in the national interest or national security of the country. I do not believe the Constitution gives the Congress this right, much less the House acting alone. I urge you to reconsider these provisions." To Amend the Rules of the House of Representatives and Establish A Permanent Select Committee on Intelligence, Hearing on H.R. 658 Before the Committee on Rules, 95th Cong. 4 (1977) (statement of Robert McClory, U.S. Representative) (emphasis added). Others suggested that the Speech-and-Debate Clause grants Congress this power. See, e.g., a Constitutional Research Service report on the creation of the Senate Committee (stating, "Senator Church explained that Section 7 [the draft provision about release of classified information] represented an attempt to accommodate both the speech and debate clause of the Constitution (providing immunity to Senators from being questioned in any other place while performing legislative functions) and the security of legitimate secrets"). William Newby Raiford, Cong. Res. Serv., To Create a Senate Select Committee on Intelligence: A Legislative History of Senate Resolution 400 19 (1976).

3  See H.R. Rep. No. 95-498 3 (1977) (Conf. Rep.) (quoting the Committee's report: "It is unlikely that the process [to declassify information over a Presidential veto] would be fully exhausted but a negotiation would occur between the committee and the Executive Branch leading to an acceptable format for the declassification of any information in question").

4  Congressional Research Service, 19. See also To Amend the Rules of the House of Representatives and Establish A Permanent Select Committee on Intelligence, Hearing on H.R. 658 Before the Committee on Rules, 95th Cong. 19 (1977) (quoting the statement of the Honorable Edward P. Boland: "We [the House] need, like our colleagues in the other body, to exercise our constitutional duty to examine, [and] restrain where necessary[,] the operations of the other branch of government").

5  20 Op. Off. Leg. Counsel 402-09 (1996).

6  See Louis Fisher, The Politics of Executive Privilege 241-42 (2004).

7  See id. at 243-45 (explaining that District Court Judge Gasch held that Congress does not have the constitutional authority to create a statute that interferes with Presidential protection of classified information). On appeal, the Supreme Court issued a per curiam order that vacated the district court's order and remanded the case and cautioned the judge to not examine the relative constitutional authority of the executive and Congress unless necessary. Accordingly, it is possible that OLC has exaggerated the holding of this case.