“We cannot say that executive privilege and control over classified information is going to be used to shield the president from his duties to comply with federal law,” said Claire Finkelstein, the faculty director of the Center for Ethics and the Rule of Law at the University of Pennsylvania law school. “That’s just a sort of complete abuse of office.”
Trump and his Justice Department have become well-known for refusing to comply with lawmakers’ requests. Repeatedly, the administration has declined to turn over documents and stopped witnesses from testifying in congressional inquiries, citing privilege and other concerns. Lawmakers have responded with contempt proceedings and lawsuits.
The most recent dust-up, though, is somewhat unusual. A whistleblower, whose identity is not known, complained to the inspector general of the intelligence community with a concern that the inspector general deemed both “credible” and “urgent.” Normally, such complaints are supposed to be forwarded to the intelligence committees within seven days.
But before that could be done, Joseph Maguire, Acting Director of National Intelligence, asked the Justice Department to get involved. And the department’s Office of Legal Counsel decided that the complaint should not be shared.
Maguire told lawmakers as much in a Sept. 13 letter, asserting that the complaint “concerned conduct by someone outside the Intelligence Community and did not relate to any ‘intelligence activity within the responsibility and authority of the DNI.’ ”
“The complaint therefore did not fall within the statutory framework governing reporting matters of ‘urgent concern’ to Congress,” Maguire wrote.
The Washington Post has reported previously that the complaint was focused at least in part on a July 25 phone call Trump had with Ukrainian President Volodymyr Zelensky. Trump, according to two people familiar with the matter, repeatedly pressed his counterpart to investigate Hunter Biden, Joe Biden’s son, in relation to work he did for a company in that country.
David Laufman, a former Justice Department counterintelligence official, said the director of national intelligence was obligated to abide by the Office of Legal Counsel’s direction not to turn over the complaint to Congress — even though the inspector general still objects to that decision. Without knowing more about the complaint, Laufman said, it was difficult to determine whether that directive was well-founded.
But Laufman said the allegation that “the president of the United States solicited a foreign government to conduct an investigation of a political adversary in a manner that could have subverted the integrity, yet again, of our democratic process is abhorrent.” And he said the delay in it getting to Congress could have the undesired effect of persuading prospective whistleblowers to go outside the normal channels to make sure their message is heard.
“We’ll see how this current standoff unfolds,” Laufman said. “One consequence of any improper preclusion of this information reaching Congress is that it could have the unintended effect of causing whistleblowers to lose confidence in the legal mechanisms made available to them, and to resort to unauthorized disclosures to the news media to ensure that their concerns have a voice.”
The Office of Legal Counsel is essentially the brains of the Justice Department and the administration more broadly, issuing opinions on some of the thorniest legal questions that agencies might face. But the office’s lawyers are not neutral parties, like judges. Their guidance often seeks to facilitate the goals of the administration.
The Justice Department has not made the office’s written guidance on the whistleblower question public. It could not immediately be learned to what extent Justice Department higher-ups — such as Attorney General William P. Barr, a vigorous advocate of executive authority — were involved in discussions about the issue. One person familiar with the matter said there were talks between Steven A. Engel, who heads the office, and a lawyer for the director of national intelligence. White House counsel Pat Cipollone also has been engaged in discussions, according to people familiar with the matter who spoke on the condition of anonymity, citing the sensitivity of the issue.
A Justice Department spokeswoman declined to comment.
Trump has flirted publicly with releasing a transcript of his call with Zelensky, and he has seemed to confirm reporting that they talked about the investigation of Biden’s son.
“The conversation I had was largely congratulatory, was largely corruption, all of the corruption taking place, was largely the fact that we don’t want our people, like Vice President Biden and his son, creating to the corruption already in the Ukraine,” the president said Sunday. “And Ukraine, Ukraine’s got a lot of problems.”
Trump, though, also questioned the whistleblower’s motives.
“Is he on our Country’s side. Where does he come from,” the president tweeted Monday.
Jim Baker, a former FBI general counsel now at the R Street Institute, said that while the president could generally invoke presidential communications privilege to keep secret his talks with foreign leaders, his publicly acknowledging the conversation could complicate that.
If Trump was invoking privilege merely to keep secret an inappropriate request of a foreign leader, “it could be interpreted that he has abused his power,” Baker said.
Analysts said that if Trump does not release more material publicly or turn it over to Congress, it is likely Democratic lawmakers would try to force the issue in court. David Kris, a former Justice Department national security official and co-founder of the Culper Partners consulting firm, said that while case law on the issue was murky, the Justice Department would be on “terribly weak ground” if Trump was pressing his counterpart on Biden.
“That’s not classified, and it’s the core of what’s wrong here,” Kris said.
Nate Jones, another former Justice Department national security official and Culper Partners founder, said a court battle could drag out.
“Trump and his intransigence on some of these things is really highlighting some of the flaws in the system itself,” Jones said. “The rule of law is heavily dependent on people of good faith on both sides being willing to recognize the limits on their authority and ultimately adhere to those things, and it’s proving less effective when it has to hold somebody to account who is willing to just throw caution to the wind and defend themselves at every turn.”