Politics & Policy

The Dumb Controversy over the Schiff Memo

Rep. Adam Schiff speaks to reporters on Capitol Hill, March 2017. (Reuters photo: Yuri Gripas)
Trump should release it with his own redactions.

The Schiff memo, principally authored by Democratic staff on the House Intelligence Committee under the direction of ranking member Adam Schiff (D., Calif.), is the response to the Nunes memo, which was composed by the committee’s Republican staff under the direction of Chairman Devin Nunes (R., Calif.). Substantively, the Schiff memo is unlikely to do Democrats much good, since the Nunes memo’s principal allegations have been corroborated — namely: The Obama administration (a) used the unverified Steele dossier to get a FISA warrant on former Trump-campaign adviser Carter Page and (b) did not tell the FISA court that the dossier was a Clinton-campaign product.

Democrats nevertheless appear to have laid a trap to try to goad Republicans into objecting to their memo. The trick would enable Congressman Schiff to claim Republicans are hiding critical facts. Committee Republicans were shrewd enough to avoid the trap, but the Trump White House has been taken in.

This is an easy one: The president should release the memo with his own redactions. It would then be up to Schiff to make the next move: Either prove Republicans are concealing facts that damage the president or expose himself as a charlatan.

In my column over the weekend, I explained that the Nunes memo’s account had been verified by the Grassley-Graham memo. The latter is the document that accompanied the criminal referral by which two senior Senate Judiciary Committee members, Chairman Charles Grassley (R., Iowa) and Senator Lindsey Graham (R., S.C.), recommended that dossier author Michael Steele be investigated for making false statements to the FBI.

Bear in mind: The controversy for months has been over the questions of whether the Obama Justice Department and FBI (a) used the Steele dossier in an application for a warrant from the FISA court targeting Trump-campaign communications, and (b) failed to inform the FISA court that the Steele dossier was an opposition-research screed commissioned and paid for by the Clinton campaign and the Democratic National Committee. It is now clear that the answer to those two questions is yes.

The Schiff memo would be highly significant if it refuted these two propositions; but it apparently cannot, so Democrats won’t try. Instead, as the Wall Street Journal’s editors pointed out this morning, the Schiff memo is a diversion: It will posit that Steele was an impeccable source, Carter Page is a sinister Russian operative, and Chairman Nunes is an awful person. It appears that much of this was adumbrated in a February 3 letter by the House committee’s senior Democrat, Jerrold Nadler (D., N.Y.), to which I responded in a column the next day.

Aware that they are firing blanks, committee Democrats evidently threaded the Schiff memo with some highly classified information. In essence, they are willing to play high-stakes poker with intelligence secrets, including sources and methods for gathering national-defense information, in order to induce Republicans to demand that the memo be suppressed. Then, of course, they bank on the Democrat-friendly media to shift the narrative from the vapidity of the Schiff memo’s contentions to the suggestion that Republicans must have something to hide.

To the contrary, as Chairman Nunes made clear over the weekend, Republicans are anxious to have the Democrats’ memo publicized — they are convinced it strengthens their case that Democrats have been citing national-security concerns to camouflage their real objection to the Nunes memo: It reveals that the Obama administration used unverified Clinton-campaign agitprop to justify spying on the Trump campaign and promote the Trump–Russia “collusion” narrative.

Thus, committee Republicans wisely refused to object to the Schiff memo on national-security grounds. They unanimously joined Democrats in voting for its release.

That threw the ball into the president’s court. So far, the White House has flubbed it.

Understandably, the FBI and other intelligence agencies strenuously object to the revelation of vital intelligence. But President Trump responded to those concerns by asserting that the entire Schiff memo must be withheld from the public. That is unnecessary as a practical matter and foolish as a political matter.

On this, we need to clear up some confusion. People seem to assume that, as between the executive and the legislature, the president has the last word on what information remains secret. Not quite.

The president is the constitutional officer chiefly responsible for national security. Foreign intelligence is collected by executive intelligence agencies for the purpose of helping the president perform this duty. Congress, however, has a critical role, too. Lest we forget, the intelligence agencies are creatures of statute — you won’t find the FBI and the CIA in the Constitution. Congress established them. It is Congress that regulates them, funds them, and conducts oversight of their operations.

Ordinarily, Congress should and does defer to the president’s judgment regarding secrecy, but it is not legally required to do so. This is another of the many situations in which the political branches share responsibilities and check each other more by their constitutional powers than by legal processes.

So, while the president may direct that classified information not be disclosed because to do so would endanger the nation, members of Congress maintain sweeping immunity under the Speech and Debate Clause (Article I, Section 6 of the Constitution) to reveal information in the course of legislative proceedings. Now, it would be terribly wrong for a lawmaker to reveal classified information, and the political consequences would likely be severe if such a revelation were made strictly for partisan reasons. Still, a member of Congress could not be prosecuted for disclosing intelligence secrets in, say, a speech on the House floor or at a committee hearing.

So here is what ought to happen.

President Trump should publish the Schiff memo, but only after the intelligence agencies go through it line-by-line.

President Trump should publish the Schiff memo, but only after the intelligence agencies go through it line-by-line, redacting any information that should be withheld — but withheld only for authentic national-security reasons, not to shield the agencies or the president from potential embarrassment.

By doing this, the White House would ensure that the gist of the Schiff memo is made known to the public. For all we know, it might even convey most of the memo’s substance — we do not know exactly how larded the memo is with methods-and-sources information planted to provoke objections. If a particular redaction makes it difficult or impossible to convey some key point Schiff is entitled to make, however, the intelligence agencies could publish (or propose to Schiff) non-classified summaries that explain the point without revealing the secrets. As I’ve pointed out before, this is the process Congress devised for litigation in the Classified Information Procedures Act; it is also the process that Republican staff followed in producing the Nunes memo.

If the White House did this, it would then be up to Schiff and the Democrats to decide what to do about the redactions. They would always have the option of revealing what has been redacted in House proceedings. If they did so, and we learned that the Trump administration had been hiding something embarrassing, that would be very damaging to the president, and it would suggest that House Republicans are engaged more in a partisan stunt than in an effort to probe improprieties by the Justice Department and FBI.

By contrast, if Democrats used their speech-and-debate immunity to reveal what the White House redacted, and it turned out that they were just gratuitously putting national security at risk in order to concoct a partisan narrative, their chicanery would be exposed. Similarly, in the more likely event that Democrats declined to fight the redactions, we would know that they have been playing games — that their claim that Republicans are hiding embarrassing facts is baseless.

It seems that Congressman Schiff and the Democrats would rather manufacture a cover-up narrative than focus on the stunning information that has already been uncovered. The White House should not help them.

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