Chalk up another Trump assault on the rule of law. 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 (and doubtless at the urging of the President himself) 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 credible and of urgent concern. If so, the Inspector General reports the claim to the Director of National Intelligence (DNI).
The decision as to whether any given report is credible and of urgent concern belongs exclusively to the Inspector General, not to the Director of National Intelligence, a political appointee of the Trump administration. Nothing in the Act gives the DNI discretion to second guess, appeal, or otherwise reverse the decision of the Inspector General.
Upon receipt of the report from the Inspector General, the DNI “shall within 7 calendar days of such receipt, forward such transmittal to the congressional intelligence committees” of Congress. “Shall” means shall. It doesn’t mean “may” or “only if the DNI agrees with the inspector general.”
In this case, an unnamed employee of the intelligence community submitted a whistleblower disclosure to the Inspector General, Michael Atkinson, on August 12.
Inspector General 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 Inspector General’s 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 also failed 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 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 that determination, or at whose urging. Did he reach that decision on his own, even though the statute gives that decision to the Inspector General, not the DNI. Is he refusing to comply with the statute because the Attorney General has advised him to do so, even though the Attorney General has no role in the statutory scheme? Or is the “higher authority” who is pulling the strings President Trump himself, even though that would mean that he appears to be burying a complaint about himself?
If there is even a whiff of legal justification for the DNI’s failure to comply with the Act, it would seem that it would have to come from the President himself. 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.
Neither does a president have any discretion under text of the Act, 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. It’s actually not so much as a legal argument as an extreme theory about the limits of executive authority. Either way, suffice it to say that the arguments on both sides are complex, and that they have never been resolved by the courts.
So, when all of this is sorted out, it will likely boil down to yet another clash over separation of powers between the President and Congress. While the courts could theoretically resolve that dispute, getting a decision out of the Supreme Court could take months or even 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, more accurately, misread) 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 is to keep quiet?
Certainly not the Inspector General, who 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.
Unless the Acting DNI reverses himself on this point, the whistleblower will be left in an untenable position. If he or she discloses the information directly to Congress without having first received the directions that the Act requires, the whistleblower risks not only the loss of employment and reputation, but the likelihood of criminal prosecution by the Barr Department of Justice.
So, 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 Inspector General to deem it urgent, and Trump to bury it.
Press reports based on unnamed sources indicate that it has to do with conversations between Trump himself and another world leader. There’s a lot of unconfirmed speculation that Trump offered a quid pro quo to the President of Ukraine – I’ll reinstate the hundreds of millions of dollars of military aid that I suspended suddenly last summer if you agree to dig up dirt on Joe Biden’s family.
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 questionable 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.
That brings us to the unofficial fourth branch of government, the American 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, we’ve come to that.
A rogue president has figured out that he can do almost anything he wants to do, and there’s nothing Congress can do about it.
Short of impeachment, that is.