War Stories

It’s Not the Cover-Up. It’s the Crime.

House Democrats are getting bogged down in process, not showing why the Ukraine scandal matters.

Joseph Maguire appears as a witness before the House Select Committee on Intelligence.
Acting Director of National Intelligence Joseph Maguire appears as a witness before the House Select Committee on Intelligence in the Rayburn House Office Building on Thursday. Chip Somodevilla/Getty Images

The House Intelligence Committee’s hearing Thursday on the whistleblower’s complaint against President Donald Trump’s activities—the first hearing held since House Speaker Nancy Pelosi announced the opening of impeachment proceedings—was a shoddily run affair, an ill-prepared ramble through the maze of process and possible cover-ups rather than a laser-focused inquiry into the damning substance of the documents that lay before the committee, containing charges that have shocked even jaded observers.

If one purpose of open hearings is to educate the public, much of which doesn’t yet support impeachment, then this first salvo was at best a waste of airtime.

The witness was Joseph Maguire, acting director of national intelligence, and at first glance his summons makes sense. Several news articles have reported that the Intelligence Community inspector general found the whistleblower’s complaint—concerning Trump’s pressure on Ukrainian President Volodymyr Zelensky to provide dirt on the son of Joseph Biden, his possible opponent in the 2020 election—credible and of “urgent concern.”

The Intelligence Community Whistleblower Protection Act states that the DNI “shall” submit such complaints to the congressional intelligence committees. But in this case, for several weeks, until Thursday, Maguire did not do that. Instead, he consulted the White House counsel and the Justice Department’s Office of Legal Counsel, which advised him not to submit it, and so Maguire withheld it—something that had never been done with a whistleblower’s complaint before. Since both Trump and, to an extent, Attorney General William Barr are subjects of the complaint, this seemed like a gross conflict of interest and evidence of a cover-up.

In his testimony, Maguire painted a less incriminating picture. He explained that, as we now know, this complaint concerned a conversation between the president and a foreign leader. Such conversations are generally considered matters of executive privilege, which the DNI has no authority to waive. He and the directorate’s lawyers felt they had no choice but to consult with the White House counsel and the OLC on whether the conversation was protected. Until they ruled on the matter, Maguire said he thought it “prudent” to withhold submission.

This seems suspicious, and maybe it is, but I asked Robert S. Litt, who was the DNI’s general counsel under President Barack Obama, whether Maguire’s explanation was valid. He replied, in an email: “It was totally appropriate for Maguire to consult on executive privilege. I would have advised him to do that if I were there.” As for the possible conflicts involved in consulting someone named in the complaint, Litt replied that Maguire had no choice. “I don’t see how he gets a ruling on the issues of executive privilege without involving DoJ and the White House,” he wrote.

Finally, as Maguire also testified, an OLC interpretation of a law is binding on everyone in the executive branch. This was also why special counsel Robert Mueller couldn’t challenge the OLC’s ruling that sitting presidents can’t be indicted for obstruction of justice.

In other words, Maguire was in a box, but he didn’t break the law by staying in its confines.

Maguire testified that he released the complaint just hours before testifying because executive privilege was no longer an issue: The White House released the detailed memorandum of Trump’s phone conversation with Zelensky on Wednesday. That being the case, Maguire released the inspector general’s letter and the whistleblower’s complaint—not merely to the intel committees but to the public.

In any case, all this is moot. The whistleblower’s complaint is out there now, so the committee should deal with its very detailed charges and go from there. If Maguire had been questioned ahead of time by the committee’s staff, there would have been no reason for him to testify at all, except maybe for a half-hour to outline his reasoning.

Instead, the Democrats on the panel asked, over and over, as if they weren’t listening the first time, whether he agreed with the inspector general that the whistleblower was credible (he didn’t challenge that judgment) or whether the president engaged in wrongdoing (he said that’s not for him to say, an answer that anyone in his position would have given) or even whether he thought the committee was right to investigate all this (that’s up to you, he shrugged, unremarkably).

Clearly, the White House and the Justice Department had self-interested reasons for blocking release of the complaint. But it’s also a long-standing argument that a president’s conversation falls under executive privilege. In any case, it’s neither valid nor a politically good idea for Democratic legislators to take their concerns out on Maguire, a 36-year veteran of Navy special operations forces and former director of the National Counterterrorism Center.

However, there was one moment when Maguire let slip a possible serious breach of trust. The committee chairman, Rep. Adam Schiff, asked if Maguire had discussed the whistleblower’s complaint with Trump personally. He replied that his conversations with the president are privileged. Later in the hearing, Schiff asked the question again, adding that Maguire didn’t have to reveal the contents of the conversation—he was asking only whether a conversation on the subject took place. Again, Maguire claimed privilege. However, minutes later, Maguire was asked whether he had ever discussed Ukraine with the president, and he replied that he hadn’t. As with the Fifth Amendment, a witness can’t claim privilege about one conversation with the president, then answer forthrightly about another conversation. The remarkable thing is, no one on the committee noted the discrepancy or followed up.

From his double standard, one can pretty safely infer that Maguire did discuss the complaint not merely with White House lawyers but with Trump—and that goes beyond his responsibilities as a loyal (acting) Cabinet officer; it might indeed suggest his involvement in a cover-up.

But again, the main issue, right now, isn’t a cover-up; it’s the crimes—or the possible impeachable offenses—themselves.

Which leads to a broad point. Before this inquiry goes much farther, the House committees need to hire lawyers to direct the questioning. This goes for the Republicans too, whose questions on Thursday were even more misdirected. The practice is not at all unusual. During the Watergate Committee hearings, the hired counsel, Samuel Dash, asked many of the questions. Just this month, during former Trump campaign manager Corey Lewandowski’s testimony before the House Judiciary Committee, it was the panel’s part-time counsel, Barry Berke, who caught the witness in contradictions and wiped the smirk from his face.

It’s also time to haul out the Capitol Hill marshals and charge uncooperative witnesses with contempt. Certainly Lewandowski should have been charged, fined, maybe jailed. Unless the questions get better and dishonest answers are punished, none of the key witnesses—except those who want to cooperate or who suddenly hate looking at themselves in the mirror—are going to come clean.

The whistleblower’s complaint lays out a road map to future inquiries. It claims that a half-dozen other officials revealed details about Trump’s hardball phone chat with Zelensky and other similarly improper phone calls. The whistleblower wants to remain anonymous, but it’s too late for that. He or she is meeting, or perhaps has already met, with the House Intelligence Committee behind closed doors. The committee needs the names of those other officials, the details of those other allegations. And it needs them quickly, before too many other aimless hearings are held and the public goes numb.