Published by The Lawfare Institute
in Cooperation With
Last week saw an important development in the continuing erosion of governmental checks and balances. House Intelligence Committee Chairman Adam Schiff subpoenaed Acting Director of National Intelligence (DNI) Joseph Maguire and wrote a blistering letter accusing Maguire of violating the law by withholding a whistleblower’s complaint from the Intelligence Committee. Schiff intimated that Maguire was acting at the direction of the White House to conceal misconduct by the president or other administration officials. The relevant legal framework is complicated.
The original Whistleblower Protection Act of 1989 excluded employees of the intelligence community from its protections against retaliation. To remedy this exclusion, Congress in 1998 passed the Intelligence Community Whistleblower Protection Act, which was incorporated and updated when Congress created the Office of the Intelligence Community Inspector General (ICIG) in 2010. This law provides an avenue for intelligence community whistleblowers to raise concerns about activities that may violate law or policy, while ensuring the protection of classified information.
The statute authorizes the ICIG to “receive and investigate ... complaints or information from any person concerning the existence of an activity within the authorities and responsibilities of the Director of National Intelligence constituting a violation of laws, rules or regulations, or mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to the public health and safety.”
It also provides procedures for a whistleblower to inform the congressional intelligence committees of an “urgent concern,” defined as, among other things, a “serious or flagrant problem, abuse, violation of law or Executive order, or deficiency” relating to intelligence activities and involving classified information. The statute requires that an intelligence community employee who wishes to make such a report first submit it to the ICIG, who must determine within 14 days whether it “appears credible.” The ICIG must then provide the DNI a copy of the complaint and his determination about its credibility.
According to the statute, within seven days of receiving such a transmittal from the ICIG, the DNI “shall ... forward such transmittal to the congressional intelligence committees, together with any comments the [DNI] considers appropriate.” If the ICIG does not find the complaint credible, or does not transmit it accurately to the DNI, the employee may contact the congressional intelligence committees directly after notifying the ICIG of his or her intention to do so and obtaining direction from the DNI—through the ICIG—for how to contact the committees securely. The statute also allows an employee who has submitted a complaint to the ICIG to notify the congressional intelligence committees that he or she has done so and on what date. (Margaret Taylor provides a detailed overview of the legislative history of the statute for readers looking for more context.)
Implementing these laws, President Obama, in Presidential Policy Directive 19 (PPD 19), and then-DNI James Clapper, in Intelligence Community Directive 120 (ICD 120), mandated that no intelligence community employee may be subject to reprisals for any disclosures that are made in conformity with the procedures set out above. Whistleblowers who do not follow these procedures, however, are not protected by the statute.
So what happened here? According to Schiff’s letter, on Aug. 12, an individual submitted information to the ICIG about an urgent concern; the ICIG conducted a preliminary review and determined that the information was credible; and on Aug. 26, the ICIG transmitted the disclosure along with his determination to the acting DNI. We don’t know what the complaint was about. But despite the seemingly mandatory language of the statute, the DNI did not forward it to the intelligence committees within seven days. Nor, according to Schiff, did the DNI give the employee direction on how to report the information to the committees in a secure fashion.
According to Schiff, the DNI refused to provide the information on the grounds that “the complaint concerns conduct by someone outside of the Intelligence Community and because the complaint involves confidential and potentially privileged communications.” The first ground the DNI asserted—that the complaint concerns conduct by someone outside the intelligence community—does not seem to justify withholding the complaint, so long as the complaint is related to “the funding, administration, or operation of an intelligence activity within the responsibility and authority” of the DNI. Thus, speaking hypothetically, since we don’t know the contents of the complaint, a complaint that alleged that the president or others at the White House interfered with intelligence reporting for political purposes would be covered by the statute because it affects an intelligence activity.
But the assertion of potential privilege is trickier. The executive branch has always maintained that it does not consider the statutory language mandatory. In signing the original Intelligence Community Whistleblower Protection Act of 1998, President Clinton stated that it “does not constrain my constitutional authority to review and, if appropriate, control disclosure of certain classified information to Congress.” President Obama reiterated this limitation in 2010. Congress no doubt disagrees with this interpretation, but the president’s ultimate control over classified information has been a consistent position of every administration.
Beyond the protection of classified information, however, these signing statements did not mention other possible privileges in connection with the whistleblower provisions, although President Obama did note that the administration would interpret a separate provision requiring mandatory notification of certain investigations by the ICIG as “not requiring the disclosure of privileged or otherwise confidential law enforcement information.” But even before the Trump administration’s expansive use of executive privilege, the executive branch has always asserted the right to withhold deliberative material or presidential communications from Congress, even if, again, Congress disagrees.
What does it all mean? Schiff’s letter says that if Maguire does not turn over the complaint by Tuesday, Sept. 17, he will be required to appear and testify at a public hearing on Thursday, Sept. 19. It remains to be seen whether he will do so—the administration has on occasion directed witnesses not to appear in response to congressional subpoenas—and whether we will learn more if he does. But we can draw a few tentative conclusions now.
First, if, as Schiff claims, the administration has asserted that the complaint involved “confidential and potentially privileged information,” this lends credence to the idea that the complaint involves communications to or from the president or his close advisers in the White House. And the unsourced Washington Post report that the whistleblower formerly worked at the National Security Council, if accurate, would further suggest that the complaint might involve the White House.
Second, it is not clear whether the whistleblower can or will bring the information directly to Congress. While, as noted above, the statute authorizes a whistleblower to provide information directly to the intelligence committees when the ICIG finds the information not credible, it is paradoxically silent on whether the employee may do so if the ICIG finds the complaint credible but the DNI refuses to forward it to Congress. Presumably this is because Congress did not contemplate that a DNI would decline to follow the statute. But the whistleblower might well lack confidence that a disclosure to Congress under these circumstances would be protected.
Schiff’s letter indicates that in a conversation he had with Maguire, the latter gave his “personal assurance that the whistleblower must be protected.” What is unclear from Schiff’s letter, however, is whether that assurance would extend to protecting the whistleblower if he or she provided the information to the committee despite the DNI’s refusal to do so.
Third, even though President Clinton’s signing statement, later adopted by President Obama, reserved the right to withhold information from Congress “in exceptional circumstances,” he also said that he anticipated that in such circumstances the intelligence agencies will “contact the congressional committees promptly to begin the accommodation process that has traditionally been followed with respect to disclosure of sensitive information.” This process typically seeks to accommodate the interest in congressional oversight by providing Congress relevant information while protecting classified and privileged information. There’s no indication that the administration has made any efforts to seek an accommodation; and any process of accommodation in this case should recognize that, given the definition of an “urgent concern,” congressional oversight interests would seem to be very strong.
Finally, this is merely the latest in a series of actions taken by the Trump administration to defy what Congress has long considered its important institutional prerogatives. These include disregarding the appropriations process to build a border wall that Congress refused to fund, ignoring congressional subpoenas and contesting Congress’s very oversight authority. It remains to be seen whether members of Congress, particularly those who have long championed whistleblowers or who have, in matters such as Benghazi or Fast and Furious, insisted on wide-ranging congressional oversight, will, this time, defend congressional prerogatives, or whether they will continue to accede to the erosion of congressional power.
Update, Sept 18:
Late yesterday, two letters from Office of the Director of National Intelligence (ODNI) General Counsel Jason Klitenic to Schiff were released. These letters, which appear likely to have been written in conjunction with the Department of Justice’s Office of Legal Counsel (OLC), clarify certain points and raise additional questions.
First, Klitenic asserts that the whistleblower’s complaint did not constitute an “urgent concern,” as defined in the statute, because it “concerned conduct by someone outside the Intelligence Community and did not relate to any ‘intelligence activity within the responsibility and authority of the DNI.’” As I noted above, the first point appears irrelevant. But I assume that Klitenic is relaying a good faith determination that the complaint does not relate to an intelligence activity and thus did not constitute an “urgent concern.” Of course, given that Klitenic’s letter states that the determination was made “after consultation with the Department of Justice,” it’s not clear how much of this analysis was ODNI’s and how much was OLC’s.
This does not end the matter, however. First, the statute does not explicitly allow the DNI to overrule the determination of the ICIG that the complaint relates to an “urgent concern.” Indeed, one could argue that by providing that the DNI “shall forward” the ICIG’s transmittal to Congress “together with any comments the DNI deems appropriate,” the statute contemplates a procedure for the DNI to express any disagreements while nonetheless informing Congress of the substance of the complaint.
Second, Klitenic asserts not only that the statute does not require disclosure to Congress but that the whistleblower (and presumably the ICIG) are prohibited from forwarding the information directly to Congress, because allowing an individual to disclose classified information, even to the intelligence committees, would violate the president’s constitutional authority to control classified information. Klitenic further noted that the ICIG had asked the DNI to transmit the complaint to Congress even if it was not required by statute, but that the DNI could not do so because the complaint “involves confidential and potentially privileged communications by persons outside the Intelligence Community.” As I noted earlier, these positions are consistent with long-held views of the executive branch, with which Congress disagrees.
Klitenic’s letters and Schiff’s responses thus tee up a fundamental conflict between congressional oversight and executive prerogatives. Encouragingly, however, Klitenic states that the ODNI is willing to work with Congress in the accommodation process I described earlier. Given the apparent involvement of the Department of Justice and the White House, and the seemingly sensitive nature of the complaint, however, it remains to be seen whether any such accommodation can be found.