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Behind the House Intelligence Committee’s Ability to Release “The Memo”

February 2, 2018

From Otis Pike to Devin Nunes – Vastly Different Goals Drove Congressional Efforts to Release Secrets

New York Democrat Otis Pike, chair of the House Select Committee

If you’ve been watching television, YouTube, listening to radio, streaming on your monitor or reading the newspapers, a lot of this week has been taken up by “The Memo.” Chasing devils in Tasmania or traveling elsewhere you might have missed it, but in any case catching up you will find that many pundits and reporters have been saying the House of Representatives bylaw which permits release of “The Memo” is an obscure bit of arcana. In fact, it is not. And House Permanent Select Committee on Intelligence (HPSCI) abilities under Rule XLVIII, Section 7, were forged in the heat of a near-constitutional crisis forty-three years ago.

You can read all about it in the Archive’s June 2017 posting, The White House, the CIA and the Pike Committee, 1975. But the story, in short, is this: in the year 1975 the intelligence agencies were under investigation by special committees in both the Senate and House. The Church Committee, chaired by Idaho Democrat Frank Church, and the House Select Committee (HSC), chaired by New York Democrat Otis Pike, both faced major obstacles in obtaining the information they needed for their inquiries. In addition to the intelligence agencies themselves, Gerald R. Ford’s White House posed obstacles, insisting on pre-approval of any document supplied to the congressional committees. Richard Cheney, as President Ford’s representative, supervised the response. The White House set up a committee of its own, one to oversee the defense of the intelligence agencies, chaired by John Marsh with sidelines advice from presidential counsel Phil Buchen.

White House, Memo from Henry Kissinger, National Security Advisor, to Jack Marsh, Counselor to the President, “Administration Position Towards the Handling of Classified Information with the Pike Committee,” September 23, 1975.

Otis Pike’s investigation kicked up dust in September 1975, responding to executive branch refusals to furnish documentation by issuing subpoenas. Ford’s Justice Department struck back with a blanket refusal to cooperate with the HSC, based on the committee’s alleged intent to reveal secret information. John Marsh’s White House defense committee squirmed on the hook, caught between its desire to avoid scrutiny of the agencies, and the legal power of the Pike committee’s actions. Secretary of State Henry Kissinger advised President Ford to fight the congressional orders even if it meant going to the Supreme Court. The precedents were clear, however. Any judge would find the Pike Committee had been properly empaneled by the House of Representatives, therefore wielded statutory authority which provided that no congressional panel could be denied information necessary to its mission, and that the subpoenas were legal and enforceable. Escalating to the Supreme Court offered no remedy—as with the “Pentagon Papers” case, a Court precedent on paper, against the executive, could be more dangerous than leaving the issue juridically ambiguous.

Both White House and CIA lawyers, in examining the substance of the case, concluded that President Ford had no alternative but to yield on the information, but he could ask Congress to suppress investigators’ reports later. The play around the Pike Committee investigation in 1975 went exactly that way. To get around the formal Department of Justice declaration, intelligence agencies gave information to the HSC under the pretense they were “loaning” the documents. The Pike committee tacitly promised not to release anything without executive branch approval. Once the committee’s report had been completed President Ford asked the House of Representatives to reject its release. The House honored the president’s request. (The leak of the Pike committee report which followed did not count as an official “release.”)

In the meantime a different kind of precedent arose. The Church committee completed an interim report on assassination plots—and President Ford asked that that document be suppressed as well. Ford’s gambit failed, but that is a story for another day. With the Church assassination report example in mind, the House Select Committee included among its recommendations one that any permanent oversight committee have a recognized right to release information of any sort, and suggested draft language which specified the mechanism for doing so. Pike’s recommended language went into the rules for the House permanent intelligence committee without change.

Devin Nunes’ official portrait.

That is the origin of the Section 7 rule under which Devin Nunes has maneuvered to get his “Memo” released. Congressman Pike and his colleagues created a mechanism to prevent the executive branch from impeding an investigation. Mr. Nunes has reversed this purpose, using the same rule in a maneuver to use the Congress to impede an executive branch agency from investigating the president. As the world turns anything can happen it seems.

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