How did the incendiary GOP memo get to Trump? Through a rule that had never been used before

  • House Intelligence Committee Republicans passed a classified memo to the president without intelligence agencies' input using the so-called Rule X.
  • Rule X has never been used before, according to a report from the Congressional Research Service in May.
  • The rule allowed the House Intelligence Committee to skip a lengthier review process.
House Intelligence Committee Chairman Rep. Devin Nunes, R-Calif., walks out to speak with reporters outside the West Wing of the White House following a meeting with President Donald Trump in Washington, DC on Wednesday, March. 22, 2017.
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House Intelligence Committee Chairman Rep. Devin Nunes, R-Calif., walks out to speak with reporters outside the West Wing of the White House following a meeting with President Donald Trump in Washington, DC on Wednesday, March. 22, 2017.

When House Intelligence Committee Republicans sent a classified memo to President Donald Trump for a public release, they sidestepped a potentially lengthy disclosure process with an arcane rule that had never before been successfully used.

The rule itself, known by some as "Rule X" for its location within the 10th rule of the House of Representatives, gave the committee the ability to "disclose publicly any information in its possession" following a vote within five days of a member's request.

On Monday, the memo passed a party-line vote for disclosure.

The document being disclosed — in this case, a hotly contested memo alleging anti-Trump bias and surveillance application abuse from the agencies investigating Russian election interference — was then sent to the president.

But even if Trump hadn't gone on the record supporting the release of the memo, House Republicans on the committee could have disclosed the memo on their own.

Rule X gives the committee the ability to disclose classified information unilaterally after five days, so long as the president doesn't object to the decision. If Trump did want to keep the document classified, he could have objected by providing a written statement outlining the national security threats that such a disclosure posed.

Even then, the committee would have been able to vote to send the memo to the full House of Representatives, which would then have its own vote on whether or not to release it.

The rule, which sidesteps the usual disclosure process that allows U.S. intelligence agencies to review the materials in question, has never been used before, according to a May 18 report from Jennifer Elsea of the Congressional Research Service.

"It does not appear that either house has invoked its procedure for disclosing classified information," Elsea said in the report. A spokeswoman from the Congressional Research Service did not respond to CNBC's request for comment.

It may not be the first time lawmakers considered using Rule X to force the release of classified documents, however.

Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, told CNBC that former Sen. Bob Graham, D-Fla., had thought about using the rule during his long-running push to release 28 redacted pages from a congressional commission's report on the Sept. 11, 2001, terrorist attacks. And the rule was also considered during the years-long process of declassifying thousands of pages of CIA interrogation documents, Aftergood said.

In the case of the surveillance memo, which grew into a political conflagration ahead of its public release on Friday, Aftergood described the House Intelligence Committee of "basically saying, 'We don't need your permission, we're going to do it anyway.'"

The premise is that the national interest justifies circumventing the more involved declassification review process. But Republicans on the committee, led by Rep. Devin Nunes, R-Calif., who worked on Trump's presidential transition team, did not vote to release another document from Democrats reportedly offering supplemental information on the same topic.

The Democrats' memo was reported to counter the memo proffered by Republicans, which minority committee members considered "misleading."

"To me, it reveals the explicitly partisan character of this activity," Aftergood said. "It is intended to advance a particular narrative, and to block criticism of that narrative."