First, the rules: When someone files a complaint with the inspector general for U.S. intelligence agencies, the inspector general determines whether it is credible and urgent. If it matches those descriptions, that person shares it with the corresponding intelligence committees in Congress.
But the inspector general in this case, Michael Atkinson, told Congress that his boss, Joseph Maguire, the acting director of national intelligence, isn’t allowing him to share it with the intelligence committees.
That has Democrats in Congress concerned that people in the highest levels of government are trying to keep this secret to protect Trump.
Claflin said it’s unprecedented for the nation’s top intelligence official to prevent the intelligence community’s watchdog from alerting Congress about what he deems an “urgent” and credible complaint. It’s unprecedented for the complaint to be about the president and for the potential retaliation to come from the president or people within his orbit. There just aren’t rules for how Congress can deal with this.
“Whistleblower rules are not set up this way,” Claflin said. “The idea of whistleblower protection rules is that the agency wants to do the right thing, and there may be a middleman bad actor who is causing problems for employees down the line. But we are dealing with the pinnacle of the U.S. government, the president is the potential retaliator in question here. And that’s a real problem, and I don’t think the laws go anywhere close to being able to deal with that.”
“Not much,” said University of Richmond law professor Carl Tobias in an email to The Fix about Congress’s options. Tobias said they can hold hearings to grill the officials involved. (Maguire will go before the House intelligence committee on Thursday.) They can even cut funding for involved agencies, but that would be tantamount to cutting funding for agencies that keep America safe.
The member of Congress at the center of this is House Intelligence Committee Chairman Adam B. Schiff (D-Calif.). His committee questioned Atkinson behind closed doors for hours Thursday, but Atkinson said he wasn’t permitted to share the complaint. Afterward, Schiff threatened legal action against the director of national intelligence, Maguire, alleging he is blocking the information to cover for the president.
Schiff told reporters Thursday that someone “is trying to manipulate the system to keep information about an urgent matter from the Congress. … There certainly are a lot of indications that it was someone at a higher pay grade than the director of national intelligence.”
Schiff predicted he would have a good case to make in court to get this information and get it quickly because “the inspector general has said this cannot wait. … There’s an urgency here that I think the courts will recognize.”
Claflin said asking the courts to step in is probably Schiff’s only option. But she was far less certain this would come out well for Congress. “What that looks like and what the outcome would be is so far outside of whatever’s been done before that it is really hard to predict,” she said in a phone interview Friday.
Congress could also try to learn of the complaint through a more roundabout way, by keeping up a public pressure campaign to get Trump to release the transcripts of his July call with the newly elected Ukrainian president.
Trump maintains that he did nothing wrong on the call. So why wouldn’t he release it? That could be the argument Schiff and House Democrats make to try to learn publicly the information they were supposed to learn privately.
That carries with it its own risks that could go far beyond even this: that future government whistleblowers won’t see the point of going through the proper chain of command. Would they stop sharing information at all? Would they share it publicly in a way that could compromise classified information?
Rep. Denny Heck (D-Wash.) warned that could lead future whistleblowers to “consider the Edward Snowden approach” and leak classified information widely instead of to Congress.
“I hope nobody does that because the truth is, that can compromise national security procedures,” Heck said. “But this precedent creates a perverse incentive for somebody to consider that. The bottom line is, we’re less safe if this law is not applied.”
Meaning: If Congress can’t persuade the Trump administration to share this whistleblower complaint with them, all the rules about whistleblowing could be blown up — and with it, Congress’s ability to oversee them severely weakened.
Mike DeBonis contributed to this report.