September 19, 2019

The Washington Post's startling scoop late Wednesday -- that a whistleblower complaint, which the acting Director of National Intelligence is refusing to forward to the House Intelligence Committee, concerns some sort of troubling and possibly illegal “promise” the president himself secretly made to a foreign government -- potentially adds another article to the litany of impeachable offenses committed by Donald Trump. Unlike the other misdeeds alleged against Trump, however, this one may avoid becoming bogged down in endless delays involving Administration stonewalling and convoluted legal proceedings, and therefore may represent Democrats' best chance of bringing down the president.

Even before the Post's scoop, events surrounding the whistleblower's complaint appeared serious: the anonymous whistleblower's complaint already has been vetted by the independent Intelligence Community Independent Counsel and found “credible and urgent,” yet Joseph Maguire, the acting Director of National Intelligence, refuses to comply with a seemingly clear statute by forwarding the complaint to the House Intelligence Committee. We already knew the misconduct alleged by the unknown Intelligence Community whistleblower involved Trump or someone very close to him, for several reasons (including Maguire telling House Intelligence Committee chair Adam Schiff he was “instructed not to” forward the complaint by a "higher authority" "above" him; the DNI's general counsel, Jason Klitenic, taking the unusual step of bringing DOJ into the loop because the matter “involves confidential and potentially privileged communications by persons outside the Intelligence Community” (i.e., executive privilege, which only applies to communications between the President himself and very senior aides); and Klitenic's Sept. 13, 2019 letter (.PDF) to Schiff, arguing that the matter doesn't concern an "urgent concern" as defined by statute, even though the independent Intelligence Community Inspector General says it does).

But the whistleblower's complaint's most powerful feature may not be its accusation that the president mishandled an intelligence matter; what makes the complaint such a potentially powerful weapon for House Democrats is its procedural posture, which might, for once, prevent Republicans from delaying Democrats' access to the truth.

Every other major House investigation into the Trump presidency -- efforts to obtain his financial records, prove campaign connections to Russia, document his emoluments violations, see the intelligence and grand jury material underlying the Mueller Report, learn the details of Census-rigging efforts, etc. -- has been stymied by Administration refusal to comply with Congressional subpoenas, followed by endless “accommodation” negotiations, followed by drawn-out court proceedings. Frustration over these delays, and Democratic leadership's seeming inability to land a punch on Trump, underlies much of the dissatisfaction on the Left with Dem leadership in general and Speaker of the House Nancy Pelosi in particular.

But the whistleblower case may be relatively immune from these delays. In this case, unlike the others, there's an insider who wants to whistleblow. Their claim is documented. The Inspector General has found it "credible and urgent." The official who is resisting production is merely acting, not confirmed, and therefore weaker politically.

If the whistleblower is willing, Congress can simply hold a hearing.

And that's what Congress should do -- because, although Congress normally refers disputes of this kind to the courts, there's a statute in this case expressly telling the courts to keep out of it. 50 U.S. Code § 3033(k)(5)(F) provides tersely: “An action taken by the Director or the Inspector General under this paragraph [concerning whistleblower complaints] shall not be subject to judicial review.”

While not a complete bar to action by Schiff (he could, for instance, try to argue that the DNI's complete abrogation of his statutory duties is not an “action” but a failure to act), this no-judicial-review statute -- seemingly a barrier -- actually is an open invitation for Schiff to finally repay the Administration's hardball tactics by forgoing recourse to the courts and instead resorting to self-help. Such a strategy would be bolstered by the Administration's recent brief in another case arguing that Congressional committees lack standing to seek court intervention in inter-branch disputes like this one. Until that argument is resolved, Schiff's committee arguably has justification to pursue other remedies. Further, the judicial process requires the two branches to engage in a (usually protracted) process of “accommodation,” negotiating the scope of what will and won't be produced. In this case, however, the independent Inspector General's finding that the complaint is “urgent” may justify the Intelligence Committee in taking more direct action.

(Of course, the Administration could take the lead, by asking a court to bar the Intelligence Committee from holding a hearing (something not barred by the whistleblower statute) -- but then, the burden is on them to convince a court to intervene. The IG's "urgency" determination, the courts' traditional deference to the political branches on intelligence matters, the umbrella of Jerry Nadler's "impeachment investigation," and the courts' aversion to entering "political" disputes may make that an uphill battle.)

Instead of asking the courts to intervene, Schiff finally has the option of calling the Administration's bluff by asserting Congress' full powers as a coequal branch of government by persuading the whistleblower to testify to the Intelligence Committee without Administration clearance. That would be a somewhat risky step for the whistleblower, who almost certainly would be attacked for failing to comply with intelligence safeguards. But the Intelligence Committees are authorized to hear any matters within their jurisdiction, regardless of security classification. The whistleblower already has gone out on a limb, almost certainly will eventually be outed, and may conclude that publicity is his or her best defense.

What's more, since the DNI himself is flouting the law, the whistleblower arguably is excused from having to follow his instructions; the relevant statute provides that if the Inspector General fails to transmit a complaint accurately, the whistleblower “may submit the complaint or information to Congress by contacting either or both of the congressional intelligence committees directly” so long as he or she “obtains and follows from the Director, through the Inspector General, direction on how to contact the congressional intelligence committees in accordance with appropriate security practices.” Here, the stonewalling comes not from the Inspector General, but from the acting DNI himself -- a situation the law's drafters, working in a more honest era, apparently failed to anticipate -- but the acting DNI has refused to provide the whistleblower with the requisite instructions on how to contact the committee directly in a secure manner, a dereliction that arguably allows the whistleblower to approach Congress directly. As Lawfare's Kel McClanahan notes, another statute,  5 U.S.C. § 7211, specifically provides that “[t]he right of employees, individually or collectively, to petition Congress or a member of Congress, or to furnish information to either House of Congress, or to a committee or member thereof, may not be interfered with or denied.” Klitenic, of course, disagrees -- but the Administration would be hard-pressed to stop Schiff from holding a closed-door hearing if the whistleblower agreed to come forward, because the Executive (and even the Judiciary, should it come to that) have no more power than the Legislature. Yes, holding a hearing into matters the Administration wishes to conceal could become a Constitutional crisis -- but it would be one clearly created by the Executive to obstruct oversight of its own misdeeds, and one in which Congress holds the winning card for a change.

In short, Schiff may have both an opportunity and an excuse to finally play hardball by bringing the whistleblower to Capitol Hill quickly, while possibly avoiding the long delays the Administration has manufactured in connection with every other Congressional oversight request. Finally, Democrats may have the tool they need to uncover the truth.

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