The Trump administration is assaulting the rule of law. Again. And don’t count on any of the three branches of our government to repel it.
This time, the Trump administration’s Director of National Intelligence (DNI), relying on advice from Trump’s attorney general, is refusing to comply with a law that requires him to transmit a whistleblower report to Congress.
And it looks like there’s nothing that can be done under the law to right this wrong, other than possibly prevailing in court challenges that could take months, or even years, to reach a final resolution. And even that is not certain.
But all is not lost. If our three official branches of government can’t solve this problem, maybe the unofficial fourth branch—our free press—can.
First, some background.
The Intelligence Community Whistleblower Protection Act (ICWPA) provides a process for an employee of the intelligence community—a whistleblower—to report to Congress a complaint or information with respect to “an urgent concern.” The act defines “urgent concern” broadly to include violations of law or Executive orders, false statements to Congress regarding intelligence activities, and threats of reprisal against prospective whistleblowers.
The act says that rather than going directly to Congress, the whistleblower should first report a complaint to the inspector general of the Intelligence community. The inspector general then determines whether the report is both credible and of urgent concern. If so, the IG then reports the claim to the DNI.
The decision as to whether any given report is credible and of urgent concern belongs exclusively to the IG, not to the DNI, who is a political appointee of the president. Nothing in the act gives the DNI discretion to second guess, appeal, or otherwise reverse the decision of the IG.
Upon receipt of the report from the IG, the DNI “shall within 7 calendar days of such receipt, forward such transmittal to the congressional intelligence committees” of Congress. “Shall” means shall. It does not mean “may” or “if the DNI agrees with the inspector general.”
In the current case, an unnamed employee of the intelligence community submitted a whistleblower disclosure to the inspector general, Michael Atkinson, on August 12.
Atkinson determined that the report was both credible and involved a matter of urgent concern. Accordingly, as required by the act, he transmitted it to the acting DNI Joseph Maguire on August 26, just prior to the expiration of the 14-day reporting period.
Up to this point, everything had played out exactly as required by the Whistleblower Act.
But then it went off the rails.
Rather than transmitting the IG report to the congressional intelligence committees, as required by the act, DNI Maguire blew through the mandatory 7-day reporting period without so much as a peep. He not only failed to tell Congress what the whistleblower had reported, but he failed even to inform Congress of the existence of such a report until September 9, a week after the expiration of the 7-day reporting period.
The DNI now claims that he has refused to transmit the whistleblower report to Congress because it concerns “conduct by someone outside the Intelligence Community and because the complaint involves confidential and potentially privileged communications.”
But the DNI doesn’t say who made this determination. Did he reach that decision on his own, even though the statute gives the responsibility for making that decision to the IG, not the DNI? Or is he refusing to comply with the statute because the attorney general has advised him to do so? (If you go by the letter of the law, the attorney general has no role in this statutory scheme.) Or is there another party who is involved in making this extra-statutory decision?
If you go by the letter of the law, the only possible legal justification for the DNI’s failure to comply with the act, would be that the president himself had ordered his action. Remember: Neither the DNI nor the attorney general has any discretion under the act, which says that the DNI “shall” transmit the report to Congress. No exceptions. No discretion. And the Attorney General has no statutory role at all.
As it happens, the president does not have any discretion under the text of the act, either. But there’s a longstanding argument that a president has such a degree of constitutional authority over the executive branch that he can overrule decisions made by anybody within that branch.
This argument is not a matter of settled law so much as a theory about the extent of executive power. It has never been either fully accepted, or refuted, by the courts.
So if it was indeed President Trump who ordered the DNI to violate the act by not giving Congress the IG report, then a resolution of this conflict will eventually boil down to yet another clash over separation of powers between the president and Congress. And while the courts could theoretically resolve that dispute, getting a decision out of the Supreme Court could take months. Or years. And as if this whole mess weren’t already complicated enough, there is a highly ambiguous provision in the act that could be read (or misread, depending on your view) to immunize the whole affair from judicial scrutiny.
Fortunately, the Whistleblower Protection Act provides a way out that wouldn’t require years of litigation. The Act says that if the DNI doesn’t transmit the report to Congress, the whistleblower can go directly to the congressional intelligence committees.
But there’s a catch. Before going to Congress, the whistleblower must obtain and follow the directions of the DNI on how to contact the congressional committees “in accordance with appropriate security practices.”
Because the directions of the DNI relate to “how” to contact Congress, not “whether” to do so, this should be a routine step involving nothing more than setting out a secure process of communication.
But does anybody doubt that the only advice this whistleblower will receive from anywhere within the Trump administration will be to keep quiet?
The inspector general has informed Congress in writing that he is at an “impasse” with the DNI because “the Acting DNI has no present intention of providing direction” on how the whistleblower can contact the intelligence committees directly.
So unless the acting DNI reverses himself, the whistleblower is in an untenable position. If he or she discloses the information directly to Congress without having first received the directions required by the act, the whistleblower risks not only the loss of employment and reputation, but the likelihood of criminal prosecution by Barr’s Department of Justice.
For now, Trump appears to have the upper hand.
If this were a Hitchcock movie, the whistleblower’s report would be the MacGuffin, the thing that everybody wants. We don’t know what’s in it, but we know that it’s important enough to cause the whistleblower to report it, the IG to deem it urgent, and Trump to bury it. Everyone is deeply concerned about this briefcase that, for all we know, could contain either a bomb or a sheaf of blank paper.
Press reports based on unnamed sources suggest that it has to do with conversations between Trump and another world leader. But we don’t know.
And therein lies the problem: Trump has it and Congress wants it.
But Congress has no police, no military, and no jails to force Trump to hand it over. Only the courts can do that, but it is not yet established whether judicial review is allowed under the act, and even if it is, the judicial process would move too slowly to resolve the matter while it remains a live issue.
Which brings us to the unofficial fourth branch of government, the free press.
The Trump administration may continue the stonewall, and Congress may be unable to do anything about it, but the press isn’t going to let this go lightly.
The best journalists on earth will continue to dig and probe until they find somebody willing to defy the Trump administration and reveal the truth.
And yes, it’s come to that.
A rogue president has figured out that he can do almost anything he wants because there’s nothing Congress can do about it.
Short of impeachment.