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FPG Affiliated Counsel Mark Zaid discusses whistleblower loophole with Politico

Written by: Federal Practice Group
Written by: Federal Practice Group

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President Donald Trump‘s communication with an unidentified foreign leader is at issue in this case. | Evan Vucci/AP Photo

'A deficiency in the law': How Trump accidentally exposed a whistleblower loophole

What happens when the administration won't tell Congress about a whistleblower complaint regarding the president? The answer to the once hard-to-fathom question is complicated.

By NATASHA BERTRAND 09/19/2019 07:17 PM EDT Updated 09/19/2019 10:03 PM EDT

For years, lawmakers have argued that intelligence personnel concerned about government actions — like Edward Snowden and Chelsea Manning — should go through formal whistleblower channels instead of illegally leaking government secrets.

But now, an unprecedented standoff between Congress and the Trump administration over a staffer who did go through the formal channels, only to have their concerns withheld from lawmakers, has laid bare a loophole in whistleblower protection laws that many thought would never be revealed: What happens when an intelligence agent blows the whistle on the president?

It’s a situation that has lawmakers pointing fingers and national security veterans rattled. Democrats are saying the administration — not the law — is to blame. Republicans, long advocates for strengthening whistleblower protections, are blaming the media and saying President Donald Trump might be entitled to some constitutionally mandated privacy. Former officials and whistleblower specialists are saying Congress needs to ensure this never happens again.

“There’s no doubt that the current situation has identified a deficiency in the law because it wasn’t contemplated that there would be a refusal to transmit at least some information to Congress,” said Mark Zaid, a national security lawyer who represents whistleblowers.

Sen. Chuck Grassley (R-Iowa), a vocal proponent of whistleblower rights, was less disquieted.

“There are a lot of rumors floating around,” Grassley said. “There are a lot of people writing about it that were not very accurate in what they wrote about Russiagate and all the stuff about Mueller, so I’m a little reserved what I say.”

“I wouldn’t be concerned just about these reports. I only get worked up when there doesn’t appear to be cooperation on whistleblowing,” Grassley said. He also noted that because the complaint involves the president, the information could be “constitutionally privileged.”

The dispute centers on a mysterious whistleblower complaint apparently about Trump’s communications with a foreign leader that acting Director of National Intelligence Joseph Maguire is refusing to share with Congress, as is normally required by law. At a closed-door briefing with the House Intelligence Committee on Thursday, Michael Atkinson, the intelligence community’s top watchdog,

“Someone is trying to manipulate the system,” House Intelligence Chairman Adam Schiff told reporters after the briefing.

But Atkinson may be legally prohibited from sharing details of the complaint with the committee because of Maguire’s decision to withhold the information from Congress. According to Schiff, Maguire intervened to block the documents from being transmitted to lawmakers. Instead, Maguire diverted the complaint to the Justice Department, explaining to the committee that because the issue involved someone outside the intelligence community, it might involve matters of confidentiality and privilege.

“There is no privilege that covers whether the White House is involved in trying to stifle a whistleblower complaint,” Schiff shot back Thursday, threatening to sue over the issue or even withhold funding from intelligence agencies until they complied.

It’s a stance that has irked some Republicans on the intelligence panel.

“If [Schiff] wants to engage in a conversation before all the facts are on the table, that’s his prerogative,” said Rep. Mike Conaway (R-Texas), a member of the House Intelligence Committee. “Until we know the facts and understand what happened, it's premature for me to speak to anything other than we're looking at the issue.”

The confusion over the dispute highlights the fact that whistleblower protection laws never envisioned a scenario in which the director of national intelligence would withhold a complaint from Congress — especially one the inspector general had deemed “urgent.”

Typically, when the intelligence agencies’ inspector general deems a complaint “urgent,” it automatically triggers a requirement to notify Congress. Even if the IG refuses to slap the “urgent” label on a complaint, the law includes a workaround that allows whistleblowers to go straight to the intelligence committees on Capitol Hill.

But once the DNI steps in, that workaround clause is essentially nullified. The whistleblower isn’t supposed to go to the committee in that scenario, and the IG’s hands are arguably tied.

“This leaves the inspector general in a pickle,” said Jim Baker, the former general counsel at the FBI. “Now that DOJ has opined, that’s the law for the executive branch. As a technical matter, the inspector general has to fall in line. Or he could violate the law and tell Congress what happened, but he might be subject to prosecution if, for example, the information is properly classified.”

While Maguire may be technically adhering to the law, he is still “pretty brazenly misusing” the intelligence community whistleblower protection system, said Irvin McCullough, a national security analyst for the Government Accountability Project who focuses on intelligence community and military whistleblowing.

The fact that Maguire is now trying to usurp Atkinson’s sole authority to determine whether this whistleblower’s complaint is both credible and matter of urgent concern “is a body blow to the intelligence community inspector general’s independence,” McCullough added.

While most Republicans avoided wading into the brouhaha, some did agree that the incident highlights potential flaws with the statute.

“"I think it's important to protect the ability of whistleblowers to communicate to the committee," said Rep. Will Hurd (R-Texas), a member of the House Intelligence Committee and former CIA officer. "I want to make sure this is streamlined and doesn't happen again."

Atkinson himself seemed to agree, characterizing the standoff as a possible symptom of a law that can be exploited in a letter to the House Intelligence Committee on Tuesday. Maguire’s move, he wrote, “may reflect a gap in the law that constitutes a significant problem and deficiency concerning the DNI’s responsibility and authority ... relating to intelligence programs or activities.”

Schiff argued that the legal statute is not the issue — its how Maguire and other government attorneys are interpreting it.

“I don’t think this is a problem of the law,” Schiff said. “I think the law is written very clearly. I think the law is just fine. The problem lies elsewhere.”

Maguire made the call to redirect the complaint after consulting with the Justice Department. The DNI’s general counsel, Jason Klitenic, also determined that because the complaint doesn’t involve someone “within the responsibility and authority” of the intelligence community, it can’t be deemed “urgent” and therefore doesn’t require transmittal to lawmakers.

Although Maguire has kept lawmakers in the dark, some contents of the complaint have been leaking into the press. The Washington Post on Wednesday reported that the complaint involved Trump making a “promise” to a foreign leader during a phone call that disturbed the intelligence official. The New York Times on Thursday reported that the complaint involves a series of actions, not just one phone call.

Zaid, the attorney for whistleblowers, called Maguire’s decision to essentially overrule Atkinson — rather than just register his disagreement in a separate memo or to withhold some, but not all, information — “totally inappropriate and not supported in any way.”

To several whistleblowing attorneys, Atkinson’s decision to alert the committee about the complaint — even if he wouldn’t divulge any information about it — was its own form of whistleblowing.

“It’s a matryoshka doll of whistleblowing,” said Kel McClanahan, executive director of the Washington, D.C.-based law firm National Security Counselors.

“It would’ve been procedurally proper for Maguire to forward a statement to Congress claiming privilege applies to the substance of the complaint, triggering a discussion over the privilege claim,” he added. “But he didn’t do that. He said, ‘I don’t think it’s an urgent concern’ — an argument he’s not even in a position to make under the statute.”

Still, because of the privilege issues at play and the legal loopholes, it’s theoretically possible that Congress could never see the actual complaint. That’s especially true because the invocation of executive privilege in this way is “consistent” with how past administrations have handled such issues, Zaid noted.

“This is not a Trump issue,” he said. “At least the legal privilege issue is not.”

Marianne Levine, Kyle Cheney and Andrew Desiderio contributed to this report.

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