And now the mystery of Rep. Adam Schiff and the whistleblower has taken an ominous new turn, one that should only underscore concerns that serious — and dangerous — lawbreaking might be unfolding.
At the very least, we’re seeing yet another serious erosion in checks on this administration’s norm-shredding — and, as I hope to explain, there are big and important principles at stake here.
The latest development: The Office of the Director of National Intelligence (ODNI) has informed Schiff, the California Democrat and chairman of the Intelligence Committee, that he will not forward a whistleblower’s complaint to the committee, as required by law.
Yet the legal rationale for refusing to do this appears specious — and raises further questions as to why this is happening at all.
This all started when Schiff announced that the Inspector General at the ODNI had alerted him to a whistleblower’s complaint that had been submitted to him. Schiff noted that the IG assessed the complaint as “credible.”
But as Schiff noted, the acting Director of National Intelligence, Joseph Maguire, has not forwarded the complaint to the Intelligence Committee.
There is a process for whistleblowers in such situations, one that has been established by federal law. A whistleblower must first submit a complaint to the IG, who determines whether it’s an “urgent concern” and “credible.” If so, the DNI “shall” forward the complaint to the congressional intelligence committees.
The idea here is that this process allows a member of the intelligence community to raise concerns about potential lawbreaking or other abuses with Congress, so it can exercise oversight over those abuses, while ensuring that classified information remains protected. This is done via the independent inspector general at first, insulating the whistleblower against agency-head retaliation, which is also provided for in the statute.
In this case, Schiff announced, the inspector general notified the committee that this whistleblower’s complaint did constitute an urgent concern and is credible — yet Maguire still hadn’t forwarded the complaint and relevant associated materials to the committee.
So Schiff called on the DNI to forward the materials, and if he failed to do that, to appear before Congress on Thursday.
Now Maguire has sent a new letter to Schiff once again refusing to forward the complaint.
What the DNI is saying
Maguire’s stated rationale for this is that the complaint does not meet the definition of “urgent concern” under the law, because it doesn’t concern conduct by a person in the intelligence community or activity that falls under the DNI’s supervision.
Because we don’t know what the complaint entails, it’s hard to evaluate this claim. But there are reasons for skepticism about this stated rationale.
For one thing, even if the conduct may not be under the DNI’s supervision, the New York Times quotes informed sources saying the complaint itself was filed by a member of the intelligence community. That suggests direct relevance to the DNI.
For another, the inspector general did determine that the appropriate destination for the complaint is Congress’ intelligence committees.
Margaret Taylor, senior editor of the Lawfare Blog, told me this is important because the inspector general has his own counsel, who could have determined that this complaint falls in the category of something that should be forwarded to the committees under the statute.
What’s more, Taylor argued, the statute does not give the DNI the authority to decide that something doesn’t count as an urgent concern, once the inspector general has designated it as such.
“The inspector general makes the decision as to whether it’s an urgent concern or not,” Taylor said. “Under the statute as written, the Director of National Intelligence doesn’t have the discretion to not act or get a second opinion. He just has to forward it to the intelligence committees.”
The principle that’s at stake here
There’s a reason the statute is written this way. As Taylor points out, lawmakers wanted whistleblowers to be able to alert them — that is, Congress, with its oversight authority — to wrongdoing without the threat that agency heads will tamper with that process, say, for nakedly political reasons.
“Lawmakers decided that Congress’ oversight responsibilities could not be effectively carried out if employees are required to obtain the approval of the heads of their agency before exposing wrongdoing,” Taylor told me.
The DNI has offered another rationale as well, one that makes this potentially more troubling.
Over the weekend, Schiff told CBS News that he’d been informed by Maguire that he was not forwarding the complaint because he is “being instructed not to” by someone “above” him, a “higher authority.”
This appears to be a reference to the DNI’s suggestion, in a separate letter to the committee, that the complaint involves “confidential and potentially privileged communications by persons outside the Intelligence Community.”
“The executive branch seems to be relying on the potential assertion of executive privilege to not supply the information to Schiff,” Taylor told me. One also wonders who outside the intelligence community is being referred to here as enjoying such privileged communications.
Trump’s White House, of course, has asserted various forms of presidential prerogative to block oversight on many fronts, including preventing Judiciary Committee Democrats from questioning multiple direct witnesses to Trump’s extensive corruption and wrongdoing, as documented by the special counsel.
At stake here, then, is whether agency heads can further erode the process by which whistleblowers can report wrongdoing to Congress, and possibly whether presidential prerogative can once again be invoked to prevent Congress from exercising oversight over it.
In other words, we’re looking at still more erosion of checks on executive branch power and, possibly, lawlessness as well.