Trump’s Legal Manipulation Could Chill Future Whistleblower Testimony

Under bipartisan pressure from Congress, an intelligence community whistleblower complaint, now the focus of an official House impeachment inquiry, was declassified and made public on Thursday.

This complaint ignited a politically charged firestorm when President Trump and his Justice Department attempted to prevent the complaint from reaching Congress. Unfortunately, the smokescreen of questionable legal claims deployed by the Trump administration has the potential to chill off future whistleblowers from coming forward. This could, in turn, have profound implications for the current investigation by the House Intelligence Committee into potentially impeachable actions undertaken by Trump.

At the center of the legal controversy is Acting Director of National Intelligence (DNI) Joseph Maguire’s initial refusal to share the whistleblower complaint with Congress, which, as alleged in the complaint, concerns President Trump’s attempts to withhold military aid to coerce Ukrainian President Volodymyr Zelensky into investigating Democratic presidential candidate and former Vice President Joseph Biden and his son, Hunter Biden. Instead of turning over the complaint to Congress pursuant to settled law, Maguire sent it to President Trump and the Justice Department, who blocked its release to Congress.

Testifying before the House Intelligence Committee on Thursday, Maguire defended his actions claiming that he was acting in tandem with the Justice Department’s opinion that the complaint did not rise to the level of an “urgent concern,” and that the president had the right to exercise executive privilege to block the complaint from reaching Congress.

When pressed by House Intelligence Committee Rep. Adam B. Schiff as to whether he would permit the whistleblower to come before his committee to testify, Maguire affirmed he would. Still, this is to assume that the whistleblower even needs authorization from the DNI to speak to the congressional intelligence committees.

According to the whistleblower complaint, on the morning of July 25, Trump spoke by telephone with Zelensky attempting to pressure him into investigating the activities of Biden and his son to help his 2020 presidential bid. According to the whistleblower, he was informed of the call by multiple White House officials and did not himself have direct knowledge of it. Reportedly, Inspector General of the Intelligence Community Michael Atkinson interviewed at least some of these witnesses.

Now, the onus falls on these witnesses to come forward in order to corroborate the whistleblower complaint. Unfortunately, within the current legal climate, the answer to the question of whether these individuals would be legally protected from reprisal by the Trump administration, if and when they speak to Congress, may itself be left to the Trump administration. The tenuousness of their receiving such protection is underscored by Trump’s attitude toward the intelligence officers who gave the whistleblower the information contained in his complaint.

“I want to know who’s the person, who’s the person who gave the whistleblower the information? Because that’s close to a spy.” Trump stated in speaking to staffers on Thursday. “You know what we used to do in the old days when we were smart? Right? The spies and treason, we used to handle it a little differently than we do now.”

Unfortunately, The New York Times, among other mainstream media, has given lip service to the idea that the ability of intelligence community whistleblowers to receive legal protection in bringing their complaints to congressional intelligence committees may be circumscribed by authorization from government officers who themselves may be involved in the wrongdoings they seek to expose. However, some of the salient aspects of the legal landscape that appear to abrogate this legal perspective seem to have been ignored.

Now that the intelligence community whistleblower has reportedly indicated a desire to talk directly with the House Intelligence Committee, and Representative Schiff has expressed a need to get corroboration from his witnesses, the issue of coupling whistleblower protection with authorization by the Trump administration may have serious negative implications for a timely congressional hearing of all the facts surrounding the complaint. However, it is, arguably, a misreading of whistleblower protection law to require such authorization in the first place.

In fact, Section 702 of the 1998 Intelligence Authorization Act (IAA) explicitly and unequivocally states that, “No basis in law exists for requiring prior authorization of disclosures to the intelligence committees of Congress by employees of the executive branch of classified information about wrongdoing within the Intelligence Community.”

Contrary to what the Times and other mainstream news media have suggested, this means that the whistleblower does not need authorization from the DNI, the Justice Department, the president or even the inspector general to go directly to Congress about a complaint. Read carefully what the Act states: “An employee of the Agency … who intends to report to Congress a complaint or information with respect to an urgent concern may report such complaint or information to the Inspector General” (emphasis added). It never says “shall” or “must.” This is quite intentional.

In general, statutory provisions are permissive or mandatory. Permissive provisions use permissive language, especially “may”; whereas requirements typically use “shall” or “must.” Thus, the IAA states clearly that “the Inspector General shall … transmit the complaint or information to the Director [DNI]”; and that, “Upon receipt of a transmittal from the Inspector General … the Director shall, within 7 calendar days of such receipt, forward such transmittal to the intelligence committees.” (emphasis added)

So both the inspector general and DNI have legal requirements to work together to transmit to Congress the complaint as well as any other information that may have been transmitted by the inspector general. Nowhere does the Act give the DNI the right to send the complaint or other information accompanying it, to the Justice Department or the president for authorization. When Maguire took it upon himself to do so, he violated the law and should bear the consequences for so doing. In contrast, the whistleblower in question is not required by the statute to deliver the complaint to Congress through the inspector general and DNI. In fact, as cited above, the whistleblower does not need authorization from anyone else to go directly to Congress. As such, he or she need not be detained by an uncooperative DNI.

Section 702 of the IAA does allow that, if the inspector general rejects a complaint as not credible or not presenting an urgent concern, the whistleblower may still provide the information to Congress. However, as the Times correctly reported, “in order to continue to be legally protected from reprisal, he or she must obey directions from the director of national intelligence on how to approach lawmakers in a way that secures classified information.” According to the Times, this creates a “loophole,” because the whistleblower must first get directions from the DNI before going to Congress with the complaint.

However, the IAA never states that the only avenue for legal protection is to get directions from the DNI on how to transmit the complaint. First, the Act doesn’t even require the whistleblower to get authorization from anyone, including the DNI. Second, the procedure for transmitting classified data is already carefully spelled out in the U.S. Code of Federal Regulations, “Safeguarding Classified Information” (46 CFR § 503.59). According to this statute:

(d) Classified information shall be made available to a recipient only when the authorized holder of the classified information has determined that:

(1) The prospective recipient has a valid security clearance at least commensurate with the level of classification of the information; and

(2) The prospective recipient requires access to the information in order to perform or assist in a lawful and authorized governmental function.

If the aforementioned conditions are satisfied, the whistleblower can still be protected legally pursuant to the statute. Thus, the Times’s claim that to continue to be legally protected, the whistleblower must first get directions from the DNI on how to deliver the information is misleading, if not false. The law provides other ways to ensure that the data is secure, and the whistleblower does not need authorization from the DNI in the first place.

In the present case, the issue of clearance for the provision of classified information to the congressional committees appears to be a red herring. If disclosure of the complaint was a threat to national security (a necessary condition for marking information as classified), it would not have been declassified in the first place. To this point, in a footnote to his complaint, the whistleblower states,

I also believe that applying a classification marking to this information would violate EO 13526, Part 1, Section 1.7, which states: “In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to: (1) conceal violations of law, inefficiency, or administrative error; [or] (2) prevent embarrassment to a person, organization, or agency.”

In other words, it would be unlawful for the Trump administration to manipulate the classification of information to conceal its own illegal activities.

Second, inasmuch as the whistleblower in the present case had access to the information in question, he or she presumably has the requisite clearance.

Third, inasmuch as the intended recipients of the information — namely one or all members of the intelligence committees — have clearance to receive the level of classified information in question, the provisions of clauses (d)(1) and (d)(2) are both satisfied. Clearly, the intelligence committees require access to such information “to perform or assist in a lawful and authorized governmental function.”

Indeed, the IAA unequivocally makes this clear when it states, “Congress, as a co-equal branch of Government, is empowered by the Constitution to serve as a check on the executive branch; in that capacity, it has a ‘need to know’ of allegations of wrongdoing within the executive branch, including allegations of wrongdoing in the Intelligence Community.” Here, the Act clearly applies to “wrongdoings within the executive branch,” which includes the president. The Act never states that it is restricted to only wrongdoings in the intelligence community. It includes such acts but is not restricted to them.

According to the Times, attorneys for Trump claim that he has the legal right to defy a congressional subpoena to produce the whistleblower complaint. This claim is allegedly based on signing statements made by Clinton and Obama when they signed into law amended versions of the National Security Act of 1947 in the years 1998 and 2010, respectively. However, one of the amendments referenced was to a section of this Act that pertains to “Presidential Approval and Reporting of Covert Actions” regarding the reporting of covert actions to the intelligence committees (Section 503. [50 U.S.C. §413b]). In such cases, the statute states:

If the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.

Further, the statute requires that all members, including those not fully informed, are provided with a “general description” of the covert action along with the legal basis for it. It is far flung to imagine that the whistleblower case in question falls into this realm of executive privilege, and if it did, the president would still need to inform the committee chairmen, including Chair of the House Intelligence Committee Adam Schiff, while providing “general descriptions” to the other members of the House Intelligence Committee.

Further, inasmuch as the complaint focuses on President Trump himself, exercising executive privilege only adds to the impression that the president is abusing the power of his office to hide his own wrongdoing. It is doubtful that the “extraordinary circumstances affecting vital interests of the United States” referred to in the statute or by Obama and Clinton in their presidential signing statements refer to such self-serving purposes.

Section 501(b) also enjoins that, “The President shall ensure that any illegal intelligence activity is reported to the congressional intelligence committees, as well as any corrective action that has been taken or is planned in connection with such illegal activity.”

If the president is himself engaged in such illegal intelligence activity, then he himself is legally required to report it promptly to the congressional intelligence committees. This underscores the absurdity of permitting the president the authority to preempt a whistleblowing investigation.

A further amendment referenced in the Obama signing statement is that of Section 103H on “Inspector General of the Intelligence Committee,” which includes the addition of the following:

PURPOSE.—The purpose of the Office of the Inspector General of the Intelligence Community is—(1) to create an objective and effective office, appropriately accountable to Congress, to initiate and conduct independent investigations, inspections, audits, and reviews on programs and activities within the responsibility and authority of the Director of National Intelligence (Section 103H. [ 50 USC 403-3h]).

Atkinson, a Trump appointee himself, has concluded that the whistleblower’s complaint is credible and rises to the level of an “urgent concern.” This is all that the IAA, in fact, requires for a complaint and any other information included with it to be sent to Congress. Interference with the duty of the inspector general to share with Congress the whistleblower complaint, as well as his own report, therefore makes a farce out of the office tasked with initiating and conducting independent investigations and accountability to Congress.

The only rational conclusion that can be drawn from the aforementioned legal analysis is that the whistleblower has a legal right to go directly to Congress, notwithstanding a DNI unlawfully refusing to do his job, and an inspector general who has been muzzled by the DNI on behalf of Trump himself.

Some legal interpretations do indeed suggest that a whistleblower is not protected in going directly to Congress unless he or she first has permission or directions from the DNI. However, according to the analysis presented here, a whistleblower need not wait to receive such authorization. Nor does Congress, as a co-equal branch of government, need to be at the mercy of a White House that may slant a redacted version of a document in its favor, contrary to fact; exercise bogus claims of executive privilege; make threats aimed at intimidating witnesses; abuse the classification system to conceal its own illicit activities; or otherwise attempt to game the system.

In 1998, the wisdom of Congress was enshrined in an intelligence community whistleblower law that realized the national security interest in protecting members of this community so that they were free to expose corruption and abuse in intelligence activities. While it may not have explicitly addressed the case of a president who attempted to conceal his own wrongdoings by blocking a whistleblower from exercising his duty to expose such wrongdoings, the law was not so ill-conceived as to protect such a president rather than the whistleblower. This would have defeated the very point of the law.