On Aug. 12, consistent with the procedures established in the Intelligence Community Whistleblower Protection Act, an unidentified whistleblower sent a disclosure and complaint to the inspector general for the intelligence community.
The inspector general determined upon preliminary review that the complaint was credible and that it related to a matter of “urgent concern” (a statutory classification). The inspector general then transmitted the disclosure to the director of national intelligence (DNI), as required by law.
That triggered a seven-day deadline for the DNI. The statute provides that the DNI “shall” within seven days forward the disclosure to the congressional intelligence committees. Followers of recent brawls between Congress and the Trump administration will recognize the all-important legal significance of the “shall” language. It takes the legal duty out of the realm of executive discretion, imposing a fixed duty that the federal courts have been able to enforce since the bedrock 1803 decision Marbury v. Madison.
But surprise. The DNI is refusing to do so.
Presidents of both parties dating to Bill Clinton have taken the position that the statute cannot usurp their ultimate authority to determine what information is classified and how to handle it.
But with that reservation of rights, there apparently never has been a case in which the executive has simply violated the plain legal mandate of transmitting such a complaint to the congressional intelligence committees.
Until now. As with its dogged refusal to comply with the equally mandatory obligation to furnish the president’s tax returns to the chairman of the House Ways and Means Committee, the administration is content to ignore its obligations and proffer a frivolous position, or no position.
The administration’s intransigence has prompted Rep. Adam B. Schiff (D-Calif.), chairman of the House Intelligence Committee, to threaten to subpoena the disclosure. In a Sept. 13 letter, Schiff told acting Director of National Intelligence Joseph Maguire that if he does not comply with his clear statutory duty by Sept. 17, the committee will require him to show up to explain why.
Schiff writes: “The Committee — and the American people — must know why, in violation of law, a whistleblower complaint is being concealed, whether the underlying conduct involves the President or those around him, and whether the White House is involved in trying to cover up the authorized disclosure.”
The speculation about the possible involvement of the president or his circle is not idle. The DNI has cryptically suggested that it can withhold the disclosure because it concerns, according to Schiff, “conduct by someone outside of the Intelligence Community.”
Even though the president is the ultimate boss of the DNI, and in that sense is part of the community, he and the White House are not subject to the DNI’s authority. Absent some other explanation for the DNI’s vague description, it’s plausible to think that the complaint alleges conduct by President Trump or the White House that presented a “serious" problem giving rise to a matter of “urgent concern.”
There is a broader theme here. Inspectors general, who operate outside of the direct supervision of their agency, exist because of our shared understanding that the executive can’t be trusted to police itself unchecked, and that secrecy leads to abuse. Ditto congressional oversight. Ditto protections for whistleblowers. They all provide means to bring information on possible abuse or unlawful conduct to actors outside of direct executive-branch control.
It is that principle that the White House and Justice Department are attempting every day to strangle. And not based on any highfalutin principle of executive power, at least not one that squares with basic constitutional and democratic principles. What’s happening is much more base and basic: Conceal possible misconduct however they can, for as long as they can, simply because they can.
The administration’s contempt for clear legal mandates brings to mind Humpty Dumpty’s familiar insistence in “Through the Looking-Glass” that when he uses a word, "it means just what I choose it to mean — neither more nor less.”
We are less acquainted with the rest of Alice’s exchange, but it is even more on point:
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”