Background: An Urgent and Credible Whistleblower Complaint About Trump
It all started in mid-August. A whistleblower in the Office of the Director of National Intelligence filed a formal complaint, under statutory whistleblower protection provisions, with the Intelligence Community’s Inspector General.
The IG’s preliminary investigation found the concerns raised were both “credible” and involved a matter that is “urgent.” These are statutory terms that trigger a requirement for the Director of National Intelligence to report the IG’s findings within seven days to congressional intelligence committees. That would have been by September 2d.
Per the statute, the relevant definition of “urgent” is:
“A serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information, but does not include differences of opinions concerning public policy matters.”
Again, the IG for the Intelligence Community determined the complaint meets that definition of “urgent” (which excludes differences of opinion on policy matters) and that the complaint is credible.
The Washington Post reports that the complaint is directly about President Trump. The Complainant has knowledge of a promise (we don’t know what) Trump made to a foreign leader (we don’t know who) that he found so concerning as to meet the statutory definition of an urgent matter.
The Director of National Intelligence Breaks The Law
Once the IG determines the complaint is credible and involves a matter that is “urgent” the statute requires the DNI to forward the complaint to Congressional intelligence committees within seven days of his receiving it. The DNI has not done so as required by law. On September 5th the Chairman of the House Intelligence Committee submitted a letter to the Acting Director of National Intelligence demanding the information and strongly advising the Acting DNI of his statutory obligation to report it.
Joseph Maguire, the Acting DNI has refused. The DNI defies the law on grounds that he, and the DOJ, have determined the matter does not meet the statutory definition of “urgent.” Maguire says he is acting on direction of a “higher authority.” There is not many that can be, and as it turns out the “higher authority” is the White House.
The statute is clear and non-discretionary. If the Inspector General determines the complaint is credible and urgent, as he has, then the “the Director shall, within 7 calendar days of such receipt, forward such transmittal to the congressional intelligence committees, together with any comments the Director considers appropriate."
The statute confers no authority to the Director to simply decide himself the “urgent” prong is not met and not forward the complaint. Since one point of the statute is provide Congressional oversight of the Director, the statute would be toothless if it allowed this. The Director may forward it, with comments stating his opinion of the complaint, but the statute is clear that once the IG determines it is “urgent” he must forward it the congressional intelligence committees.
The Inspector General Takes A Courageous Stand
Of course this IG has a name. He is Michael Atkinson and he is a Trump appointee. However, he has made clear that he is fed up with the failure to forward the whistleblower’s complaint to the Congressional intelligence committees as required by law.
Everyone should read this September 17 letter from Michael Atkinson, the Inspector General for the Intelligence Community, addressed to Devin Nunes and Adam Schiff.
In a nutshell.
- The IG disagrees with the DOJ and DNI that the matter is not “urgent” under the statute.
- The IG believes that the law requires the DNI to forward the complaint to the congressional intelligence committees.
- The IG has tried to resolve this disagreement with the DNI but now regards the matter at an impasse.
- The IG states, the Acting DNI “has no present intention” of providing the complaint to the congressional intelligence committees “in accordance with standard security practices.”
- The IG states, “important information provided by the Complainant [is] being kept from the congressional intelligence committees.”
- The IG further states, “my unresolved differences with the Acting DNI are affecting the execution of two of my most important duties and responsibilities as the Inspector General of the Intelligence Community.” He goes on to state that these two important duties are:
1. His “significant responsibilities toward the Complainant . . . who wants to disclose to Congress in an authorized and protected manner classified information that the Complainant believes in good faith is ‘with respect to an urgent concern.’”
2. His “statutory responsibility to ensure congressional intelligence committees are kept currently and fully informed of ‘significant problems and deficiencies relating to programs and activities within the responsibility and authority of the Director of National Intelligence.’”
- The IG expresses considerable concern for a Complainant who brought forth what he regarded as an “urgent concern” in good faith, and within the process proscribed by law to protect him, but who may no longer be statutorily protected because the DOJ and DNI post hoc decided it was not an “urgent concern.”
A Profile In Courage
Atkinson is a Trump appointee. His letter must be viewed as a profile in courage. He has effectively called BS on the Director of National Intelligence, the DOJ, and the President who is undoubtedly pulling their strings. In so doing he has shown the independence an IG is supposed to demonstrate. The letter’s statement that what is occurring interferes with his most important duties should also be viewed as a clear statement that he is willing to resign over this.
A Trump appointee shows the courage and sense of duty to country demanded of his job. How often do you get to say that?
