How unusual is it for Republicans in Congress to release this FBI memo?

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The Washington Post’s Devlin Barrett analyzes the disagreements between the FBI and the White House over a memo alleging surveillance abuse by the FBI. (Bastien Inzaurralde/The Washington Post)

Just about everything around the release of the GOP memo alleging FBI wrongdoing in its Russia investigation is not normal.

It is not normal for a president to advocate for the release of classified information, nor is it normal for the FBI and the Justice Department to directly counter the president. It is definitely not normal for Congress to release classified information in the first place despite all this, especially about an investigation in the middle of said investigation.

That last part is the crux of the raging partisan fight behind this secret GOP memo that could be released as soon as Thursday. There are reasons to be skeptical of the memo, not the least of which is the FBI warning it is inaccurate. How the memo got put together behind closed doors could be another reason to question its motives. Former congressional staffers say Republicans are breaking with decades of tradition and common sense in how Congress handles classified information.

The main thing to know is Congress does not get to decide what to do with the classified information. Congress did not collect it, they do not guard it, and they usually do not get to say whether something should be classified or declassified, said Andrew Wright, a former congressional lawyer and Obama administration official who regularly handled classified information.

Wright explained that, in the 1970s, Congress set up its own intelligence committees to oversee the agencies that collect and guard government secrets. That is why staffers for House Intelligence Committee Chairman Devin Nunes (R-Calif.) were able to read over classified foreign intelligence surveillance in the Russia investigation, like wiretaps of Trump former foreign adviser Carter Page or intercepted communications with Russians or even read emails and texts the FBI captured from phones and computers. Basically, Congress has access to a lot of secret stuff.

Those secrets still technically belong to executive branch. The House requires members of the intelligence committee to take an oath that they will not disclose any classified material unless it is approved by the federal agencies or the House.

So if Congress wants to release classified information, they need to get the original classifier to agree, as well. Kinda like if someone told me a secret, and I wanted to broadcast it live on cable TV, it is probably a good idea to go back to that person and get their permission. In Congress, it is not uncommon for lawmakers who want to publicize classified information to spend months or even years going back and forth with the FBI or CIA to negotiate what can go public.

“My experience working in Congress and in the executive branch has been that Congress is pretty good with classified information,” Wright said. “My perspective was that Congress took classification stuff seriously.”

Long story short is Congress tends to defer to the executive branch on how to handle and whether to release classified information. That is what makes this memo so weird. It is making its way to the public despite the executive branch.

Republicans in Congress and the president are virtually the only ones in Washington who want it released. The Justice Department has said it would be “extremely reckless” to share the memo, given it could dry up the FBI’s leads by sharing how the FBI is getting that information. Wright said it could even get sources killed.

In addition, the FBI has said the memo is not even accurate. Democrats on the House Intelligence Committee who have seen this memo say Republican authors cherry-picked classified information to discredit the FBI.

All that explains why on Monday, Republicans pulled out a little-used rule to release classified information by voting as a committee on whether to do it. (The vote fell sharply along partisan lines.)

There is a time and a place for Congress to override the executive branch. Wright said down the line, he could see how classified information that led to this Russia investigation should be released for the public interest. That is normally a discussion to have after the investigation is done. To do it in the middle of a sensitive investigation, in a way that could compromise investigators’ intelligence sources and even put some of them in danger? “I think it’s shocking,” Wright said.

Then for House’s Republican lawmakers to vote to release their memo but not vote on releasing the Democrats’ response? Highly unusual. Even the uber-partisan congressional investigation into the 2012 Benghazi terrorist attacks did not hold back both sides. When members of the committee failed to agree on one report, Republicans released theirs, and Democrats released theirs.

Everything about how this memo got put together and will be released is so abnormal it raises this question: Have Republicans found something as serious as corruption within the FBI that their findings cannot wait until the investigation is over? Or is this memo part of a political effort to help the president by undermining the investigation?

Read more: 

Here’s what to know about the Nunes memo, and why Democrats are upset about it

Trump-FBI feud over classified memo erupts into open conflict

Correction: This post originally stated an incorrect year for when the Benghazi terrorist attacks happened.





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