'A deficiency in the law': How Trump accidentally exposed a whistleblower loophole

Source: Politico | September 19, 2019 | Natasha Bertrand

What happens when the administration won’t tell Congress about a whistleblower complaint regarding the president? The answer to the once hard-to-fathom question is complicated.

For years, lawmakers have argued that intelligence personnel concerned about government actions — like Edward Snowden and Chelsea Manning — should go through formal whistleblower channels instead of illegally leaking government secrets.

But now, an unprecedented standoff between Congress and the Trump administration over a staffer who did go through the formal channels, only to have their concerns withheld from lawmakers, has laid bare a loophole in whistleblower protection laws that many thought would never be revealed: What happens when an intelligence agent blows the whistle on the president?

It’s a situation that has lawmakers pointing fingers and national security veterans rattled. Democrats are saying the administration — not the law — is to blame. Republicans, long advocates for strengthening whistleblower protections, are blaming the media and saying President Donald Trump might be entitled to some constitutionally mandated privacy. Former officials and whistleblower specialists are saying Congress needs to ensure this never happens again.

“There’s no doubt that the current situation has identified a deficiency in the law because it wasn’t contemplated that there would be a refusal to transmit at least some information to Congress,” said Mark Zaid, a national security lawyer who represents whistleblowers.


The dispute centers on a mysterious whistleblower complaint apparently about Trump’s communications with a foreign leader that acting Director of National Intelligence Joseph Maguire is refusing to share with Congress, as is normally required by law. At a closed-door briefing with the House Intelligence Committee on Thursday, Michael Atkinson, the intelligence community’s top watchdog, stonewalled Democrats’ attempts to get answers, leaving them fuming.


The confusion over the dispute highlights the fact that whistleblower protection laws never envisioned a scenario in which the director of national intelligence would withhold a complaint from Congress — especially one the inspector general had deemed “urgent.”

Typically, when the intelligence agencies’ inspector general deems a complaint “urgent,” it automatically triggers a requirement to notify Congress. Even if the IG refuses to slap the “urgent” label on a complaint, the law includes a workaround that allows whistleblowers to go straight to the intelligence committees on Capitol HIll.

But once the DNI steps in, that workaround clause is essentially nullified. The whistleblower isn’t supposed to go to the committee in that scenario, and the IG’s hands are arguably tied.

“This leaves the inspector general in a pickle,” said Jim Baker, former general counsel at the FBI. “Now that the Justice Department, that’s the law. As a technical matter, the inspector general has to fall in line. Or he could violate the law and tell Congress what happened, but be subject to prosecution if the information is classified.”

While Maguire may be technically adhering to the law, he is still “pretty brazenly misusing” the intelligence community whistleblower protection system, said Irvin McCullough, a national security analyst for the Government Accountability Project who focuses on intelligence community and military whistleblowing.

The fact that Maguire is now trying to usurp Atkinson’s sole authority to determine whether this whistleblower’s complaint is both credible and matter of urgent concern “is a body blow to the intelligence community inspector general’s independence,” McCullough added.

While most Republicans avoided wading into the brouhaha, some did agree that the incident highlights potential flaws with the statute.


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