FPG AFFILIATED COUNSEL MARK ZAID Speaks with the Wall Street Journal on the latest in the legal showdown over an anonymous whistleblower complaint
Posted By fedpractice || 23-Sep-2019
Whistleblowers Dealing in Classified Information Present Legal Dilemma
Several presidential administrations have maintained that whistleblower law can’t force disclosure of classified material to Congress.
House Democrats, including House Intelligence Committee chairman Adam Schiff, (D., Calif.), want to see an intelligence-community whistleblower complaint. PHOTO: SHAWN THEW/SHUTTERSTOCK
Sept. 20, 2019 5:34 pm ET
WASHINGTON—At the heart of an unfolding legal showdown over an anonymous whistleblower’s complaint concerning President Trump is a law designed to allow members of the intelligence community to bring forward evidence of wrongdoing by the government.
Congress passed the Intelligence Community Whistleblower Protection Act in 1998 because earlier whistleblower laws excluded members of the intelligence agencies from certain protections. President Obama expanded protections in 2012 for intelligence whistleblowers using his executive authority. Congress codified some of those changes into law two years later.
The aim was to allow officials in intelligence agencies a pathway to disclose wrongdoing involving classified programs to the independent watchdog that oversees intelligence agencies, as well as the congressional committees that supervise intelligence activity.
But the whistleblower law has been controversial from the start. Some advocates say it doesn’t go far enough in protecting officials who want to make disclosures, while several presidential administrations have maintained that it can’t force disclosure of classified information to Congress.
Last month, a whistleblower within the executive branch filed a complaint that has prompted a standoff between the U.S. intelligence community and Democrats in the House of Representatives. People familiar with the matter have said it involves Mr. Trump’s communications with a foreign leader—possibly Ukraine’s. The intelligence community inspector general deemed the complaint to be credible and relevant to intelligence activities, a determination that is supposed to trigger a disclosure to Congress.
However, the director of national intelligence in consultation with the Justice Department concluded that the matter was not one of “urgent concern”—part of the standard under the law—and blocked the complaint’s transmission to Congress. House Democrats have demanded that the whistleblower complaint be forwarded, sending a subpoena to the nation’s intelligence chief for information about the matter.
“This is exactly what we want whistleblowers to do when they learn about government conduct, which in their assessment, should be evaluated by appropriate authorities—to utilize the statutory course of action that Congress has devised to make that disclosure consist with the law,” said David Laufman, a former Justice Department national security official now a lawyer in private practice at the firm Wiggin and Dana.
“As far as I can tell, this is what this individual has done,” Mr. Laufman said. “He did exactly what the law contemplated.”
Further complicating the matter is that the president himself is involved in the complaint. Administrations of both parties have claimed that some presidential communications are protected—even from Congress—by a legal doctrine known as executive privilege.
“These laws and authorities were not designed with the president in mind as the actor,” said Katrina Mulligan, a former Justice Department official who now works at the liberal think tank Center for American Progress. “It does fall in a gray area.”
Presidents dating to George Washington have invoked the general principle that some information should be shielded from disclosure to the public or to Congress in the interests of confidentiality or national security.
The Supreme Court has affirmed the general concept of executive privilege during the Watergate era, in the landmark case ordering President Nixon to comply with a subpoena for tapes of his Oval Office conversations. In United States v. Nixon, the Supreme Court held that the privilege existed, but that a demand from a prosecutor as part of a criminal investigation could overcome such a privilege.
The high court, however, has never addressed under what circumstances a congressional demand could overcome executive privilege. That has left ambiguity over what exactly is privileged and under what circumstances Congress can obtain that material.
The privilege exists to protect candid discussion by government officials, said Bobby Chesney, a professor of law at the University of Texas. But it can’t be absolute, he said. “I don’t think anyone would really want the rule to be that if the president says something to a foreign leader, it’s somehow secret forever,” Mr. Chesney said.
When President Clinton signed the 1998 intelligence whistleblower law, he said in a statement: “The Act does not constrain my constitutional authority to review and, if appropriate, control disclosure of certain classified information to the Congress”—in essence, rejecting the theory that Congress could mandate disclosure of classified material to Congress.
Mr. Obama echoed that language in 2014 when Congress added additional protections for intelligence whistleblowers.
Mark Zaid, a lawyer who has represented national-security whistleblowers for more than 20 years, said that the current administration’s claim that Mr. Trump’s communications might be “privileged” is in line with the stances of previous presidents, including Democrats. But in the past, he said, Congress and the executive branch have usually been able to reach an accommodation about the release of certain materials.
“I’m concerned there is a politicization of the legal process surrounding whistleblowing,” he said. “Politics has interfered in this case, it looks, on both sides.”
By Byron Tau (email@example.com)
- Dustin Volz and Warren Strobel contributed to this article.
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