Democrat Letter Raises Serious Constitutional Concerns–and Some Serious Questions

September 19, 2018 Updated: September 20, 2018

Commentary

On Sept. 18, the four Democratic members of the Gang of Eight sent what can only be described as a highly unusual and inflammatory letter that was addressed to the Director of National Intelligence Dan Coats, Deputy Attorney General Rod Rosenstein, and FBI Director Christopher Wray.

The Gang of Eight (Go8) is made up of the leaders of the Republican and Democratic parties from both the House and Senate, along with the chairpersons and ranking minority members of the House and Senate Intelligence committees. House and Senate members holding the following positions are automatically members of the Go8:

  • Chairman of the House Permanent Select Committee on Intelligence—Devin Nunes (R-Calif.)
  • Minority Leader of the House Permanent Select Committee on Intelligence—Adam Schiff (D-Calif.)
  • Chairman of the Senate Select Committee on Intelligence—Richard Burr (R-N.C.)
  • Minority Leader of the Senate Select Committee on Intelligence—Mark Warner (D-Va.)
  • Majority Leader of the Senate—Mitch McConnell (R-Ky.)
  • Minority Leader of the Senate—Chuck Schumer (D-N.Y.)
  • Speaker of the House—Paul Ryan (R-Wisc.)
  • Minority Leader of the House—Nancy Pelosi (D-Calif.)

These individuals are briefed on classified intelligence matters by the executive branch and are responsible for congressional oversight of all intelligence agencies. They are the “checks and balances” for the intelligence aspect of our government. Anything intelligence-related must be shown to this committee. In theory, if there is a covert U.S. government operation, these members know of it and have approved it. It is a very powerful committee.

The letter in question came from Pelosi, Schumer, Schiff, and Warner.

The least surprising aspect of the letter is that Pelosi and her fellow Democrats don’t want the FBI and Justice Department (DOJ) (or anyone) to comply with President Donald Trump’s declassification order for documents and text messages related to the Russia investigations. The declassification of the requested documents is near-certain to demolish the Trump-Russia collusion narrative that has been so carefully crafted.

Before proceeding further, a few points of clarification.

  • The executive and legislative branches are co-equal branches of government. One isn’t subordinate to the other.
  • The DOJ and the FBI are part of the executive branch—under the authority of President Trump.
  • The DOJ and the FBI are subordinate to the president.
  • The president has issued a presidential order—not a request.
  • The president has the constitutional power to declassify documents.
  • Trump has plenary (absolute) authority in this matter.
  • The Go8 doesn’t represent a “fourth branch” of government.

There’s a lot in the letter, but let’s start with the closing sentence.

“Your agencies’ review, and any communication with the White House on the substance of the material, should not proceed further until you have briefed the Gang of Eight in person.”

“Should not proceed further”—the Go8 can’t circumvent a presidential order that has been issued to executive branch officials, who are subordinate to the president.

While congressional members are responsible for various oversight issues, they can’t issue an “order” to officials within the executive branch—especially one that seeks to circumvent a presidential order.

Washington lawyer Will Chamberlain noted the following in a video statement:

“President Trump has ordered his subordinates to declassify certain information relating to the Russia investigation. He has plenary declassification authority as the president of the United States. The FBI and the DOJ are subordinate to him. Congress does not get to order Executive Branch officials to defy a president—that’s actually a constitutional crisis.”

The demand by the Go8 congressional Democrats is a written attempt to assume power not rightly granted by our Constitution. Such an attempt shouldn’t be tolerated. Unfortunately, at this juncture, there has been no such outrage about the letter.

Who Is ‘You’?

Following the letter’s release, the Conservative Treehouse sent out a tweet, asking a very simple question:

“Who is ‘YOU?'”

This is an excellent question and pertains to several odd references made throughout the letter that highlight previously unknown verbal assurances provided by one or more of the parties being addressed.

Keep in mind that the letter has been formally addressed to all three of the previously mentioned individuals—Coats, Rosenstein, and Wray. The first occurrence happens at the end of the first paragraph:

“Any decision by your offices to share this material with the President or his lawyers will violate longstanding Department of Justice policies, as well as assurances you have provided to us.”

What assurances were provided? To whom were they made? And who made them?

The answer to the final question would appear to be simple—all three parties being addressed: Coats, Rosenstein, and Wray.

However, that answer—perhaps applicable for this particular passage—appears to be incorrect for later sections.

At certain points, the focus of those being addressed subtly shifts—seemingly from one person to another:

“On June 5, 2018, we first wrote to Deputy Attorney General Rosenstein and Director Wray to express deep concern that the President and his legal team sought to abuse the President’s power to interfere with the Special Counsel’s ongoing investigation and undermine the Department of Justice and Federal Bureau of Investigation’s lawful and appropriate activities.

“On June 27, 2018, we wrote again to memorialize the verbal assurance you provided us that DOJ and FBI would not provide the White House or any of the President’s attorneys with access to sensitive information briefed to a small group of designated Members.”

Again, as noted by the Conservative Treehouse wrote in a tweet, who, exactly, is “you?”

The “sensitive information briefed to a small group of designated members” is a bit easier to understand. The small group is, of course, the Go8. We also know who did the briefings between August and September 2016: former CIA Director John Brennan.

From his congressional testimony on May 23, 2017, Brennan said:

“Through the so-called Gang of Eight process, we kept Congress apprised of these issues as we identified them. Again, in consultation with the White House, I personally briefed the full details of our understanding of Russian attempts to interfere in the election to congressional leadership.

“Specifically, Senators Harry Reid, Mitch McConnell, Dianne Feinstein, and Richard Burr, and to Representatives Paul Ryan, Nancy Pelosi, Devin Nunes, and Adam Schiff between 11th August and 6th September [2016], I provided the same briefing to each of the Gang of Eight members.”

A question needs to be asked: Why did Brennan brief each Go8 member separately—and over a span of three weeks? Perhaps it was nothing more than scheduling conflicts, but Brennan appears to go out of his way to note that he provided the same briefing to each member.

If this was so, why would there be a particular concern over this information being given to the White House or any of the president’s attorneys. It seems an odd point to be demanding privacy assurances nearly two years later.

As long as all the information transmitted by Brennan was the same for each Go8 member.

Meanwhile, those being addressed by the letter continue to shift:

“On July 12, 2018, we also wrote to Director Coats to express alarm that this information was being made more broadly available within the Congress, in direct contravention of your assurances. In this letter, we noted that during our meetings with all of you on these sensitive matters, we discussed at great length the importance of protecting sources and methods and ongoing investigations. As you recall, all of the meetings’ attendees agreed that the information discussed was among the most sensitive type of information and should be protected accordingly.”

Notice what was actually said, and who was addressed. First, comes an indirect reference to DNI Coats; “We also wrote to Director Coats.” Then, the shift back to a direct address: “in direct contravention of your assurances.”

This could be understood as a shift back to all three individuals.

But then comes the distinction: “during our meetings with all of you.” And then back to “as you recall.” Who is “you?”

My money is on Rosenstein. But Wray appears to be a near-equal candidate. Either is possible.

 

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Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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