For months, a group of lawmakers commonly referred to as the Gang of Eight fought to gain access to the classified documents recovered from Donald Trump, Mike Pence, and Joe Biden. The Department of Justice (DOJ) refused all requests by both House and Senate Intelligence committees. But the DOJ relented, granting access to the select group of legislators – only after both Republicans and Democrats threatened to tie up the department’s funding until it “operates in good faith.”
Classified Documents, Ongoing Investigations — Who Can See What?
There are solid arguments for why certain information shouldn’t be publicly available, and the president has great leeway in deciding what is classified and at what level of secrecy. Furthermore, it makes sense that an ongoing investigation could be put at risk by sharing any details with the outside world. But where does that authority end? Can a president simply declare anything a secret, hiding it away from any oversight?
Before 1947, the answer was yes, in most cases. However, the National Security Act of 1947 provided a layer of protection against such manipulation of classified documents – at least at the executive level alone. The law grants the Intelligence Committee of both the House and the Senate access to such secret information and permits some exceptions in cases where secrecy is especially crucial to national security. Even then, however, someone in Congress must be allowed access. Enter the Gang of Eight.
In these special situations, the president can elect to share information with the majority and minority leaders of the House and the Senate and the committee chair and ranking member of both intelligence committees, who then are not allowed to share it with anyone else. Though the members of the Gang of Eight may change quite frequently, the offices from which they come do not. This guarantees there are always two members from each chamber from each of the major parties who can see even the most secret of classified documents, assuring, in theory, congressional oversight in sensitive situations. Presently, the Gang of Eight includes:
- Senate Majority Leader Chuck Schumer (D-NY)
- Senate Minority Leader Mitch McConnell (R-KY)
- Senate Intelligence Committee Chairman Mark Warner (D-VA)
- Senate Intelligence Committee Ranking Member Marco Rubio (R-FL)
- Speaker of the House Kevin McCarthy (R-CA)
- House Minority Leader Hakeem Jeffries (D-NY)
- House Intelligence Committee Chairman Michael Turner (R-OH)
- House Intelligence Committee Ranking Member Jim Himes (D-CT)
The Struggle Is Real
Lawmakers from both chambers of Congress – and both major parties – began requesting access to the classified documents retrieved during the FBI raid of Trump’s Mar-a-Lago residence shortly after it hit the news. And though the DOJ consistently refused to release anything, the requests didn’t stop.
The raid occurred on Aug. 8, 2022, and by Aug. 22 a formal request had been filed by the Gang of Eight – a slightly different crew, at the time – for the classified documents to be released to them for review. The DOJ refused, citing the ongoing investigation as the reason for maintaining secrecy even from these select few. Now, months later – and after the Gang of Eight swapped out some members and new batches of classified documents have been found in the possession of both former Vice President Mike Pence and current President Joe Biden – the DOJ finally relented. The Gang of Eight was granted access and can now review the first batch of documents.
(Photo by Anna Moneymaker/Getty Images)
What changed? Was it the legislators’ persistence? Perhaps. Could it be the Biden administration decided transparency was, after all, the best policy? Well, that’s certainly possible. But maybe – just maybe – the sudden inspiration came from another recent development: Senate Intelligence Committee members, both Republican and Democrat, threatened to pull funding from the Justice Department.
A Bipartisan Pushback?
“There’s no doubt that there’s going to be consequences for it. There has to be. We have to protect our role in oversight,” Rubio told The Hill. “And the way you do that, unfortunately, is to leverage [the power] that appropriations and authorizations gives us. We would prefer not to, but if we have to, we will.”
That’s the ranking Republican on the committee, but what of Chairman Warner? The Democrats are the party that tends toward statism, which naturally brings a defense of the Leviathan in general – especially when it has Trump in the crosshairs. “It should never have taken six months for us to start being able to do our duty as congressional oversight of the intelligence community,” said Warner, who had previously expressed his displeasure with the DOJ’s reticence to share.
“We’ve got two examples, you know, the potential mishandling of documents by current and former presidents and now this potential leak, or real leak,” Warner explained. “I think it does raise a question that in some cases we way over classify. In other cases, we may appropriately classify but give out the documents to too many people.”
“The Senate Intelligence Committee isn’t interested in the details of the investigation,” The Hill reported, “but rather the potential national security fallout from the failure to keep the documents properly stored. They argue they need to weigh if the intelligence community has taken all necessary steps to remedy the damage.”
To be sure, the situation is a bit muddied. What began as an investigation into Trump, the left’s bogeyman, quickly grew to include Biden. Then there is the valid concern that the wrong people might have gained access to classified documents while they were possessed by either president or the former vice president, and just what information might have been compromised. A cynical person might suggest the only reason Republicans and Democrats in Congress are allied on this issue is that, with a president from each party involved, both sides have a chief executive to protect and another at whom to hurl accusations. In either case, the fact that even historically statist Democrats were willing to withhold funding for an otherwise friendly executive department is no trivial fact. What was classified, how damaging would it be if it got out, and what are the chances it did in fact get out? These are the questions Congress – or at least the Gang of Eight – will finally be able to investigate.
