We don’t yet know what President Donald Trump said or did that compelled an official to file a whistleblower’s complaint to the national intelligence directorate’s inspector general. But the Justice Department’s unusual—perhaps unprecedented—refusal to let Congress see the complaint is sparking the most serious clash over presidential power and democratic oversight since Watergate.
The administration may be putting up such a fierce fight on the issue because, if initial reports about the complaint are true, Trump could be guilty of violating federal bribery statutes—and, by any measure, would be guilty of impeachable “high crimes and misdemeanors.”
According to several, still tentative press reports, the complaint—which was first reported Wednesday night by the Washington Post—may concern allegations that Trump held up congressionally authorized military aid to Ukraine and said he would release it only if the country’s newly elected president, Volodymyr Zelensky, reopened investigations into Joe Biden, Trump’s possible 2020 election opponent. (On Friday, Trump declined to say whether he discussed Biden in a July phone call with Zelensky.)
Federal bribery statutes prohibit any U.S. official from expressing a “specific intent to give or receive something of value in exchange for an official act.” Courts have ruled that soliciting an attack on a political opponent constitutes asking for “something of value.”
The Justice Department’s Office of Legal Counsel has taken a very narrow view on whether any criminal statutes can be applied to a sitting president, so it’s unlikely Trump will be indicted for bribery. However, if the reports about Trump’s conversation with Zelensky are true, it would amount to an impeachable offense by any measure.
“High crimes and misdemeanors” is a vague phrase, but the impeachment clause of the Constitution—Article II, Section 4—precedes it with two very specific charges. A president, vice president, or other civil U.S. official, it states, shall be removed from office if impeached and convicted for “Treason, Bribery, or other high Crimes and Misdemeanors.”
Trump’s alleged action clearly amounts to bribery, under federal statute. Even if the Justice Department is right that a president can’t be charged for that (or any) crime by the courts, he can be charged for it in an impeachment resolution—which only Congress can decide. It’s allowed explicitly in the Constitution.
Of course, impeachment and conviction requires evidence. So Trump’s Justice Department, abetted by the acting director of national intelligence (who has not yet been confirmed by the Senate), is doing everything possible to block the evidence—whatever it may be—from reaching Capitol Hill.
Here is where the second big clash is erupting: a clash over the proper interpretation of the Intelligence Community Whistleblower Protection Act of 1998.
The act protects intelligence officials—just as a similar 1989 bill protected other federal officials—who report actions that constitute “a violation of laws, rules or regulations, or mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to the public health and safety.”
What’s so dramatic and controversial about the current crisis is that the whistleblower filed a complaint of “urgent concern,” which the act defines as a “serious or flagrant problem, abuse, violation of law or Executive Order, or deficiency” relating to intelligence activities and involving classified information. Under the law, this sort of complaint goes to the intelligence community inspector general, who has 14 days to determine whether the complaint is credible. If it is ruled credible, the IG passes the complaint to the director of national intelligence, who—in the law’s language—“shall” forward it to the congressional intelligence committees, along with a comment, if appropriate, stating the DNI’s own view of the matter.
In this case, the inspector general ruled the complaint credible, but Joseph Maguire, the acting DNI, decided not to forward it to the congressional committees—a judgment made after consultations with the Justice Department. Rep. Adam Schiff, chairman of the House Intelligence Committee, sent a letter to Maguire demanding access, citing various clauses of the 1998 law. The office of the DNI’s general counsel, Jason Klitenic, replied with two letters, and here is where things get really complicated.
In his letters, Klitenic gave three reasons for leaving Congress out of the loop. First, he said, the whistleblower is not an official in one of the intelligence agencies, so is not accorded the law’s protection. Second, he argued, under certain circumstances, the executive branch can withhold privileged and classified information from Congress as a matter of general principle. Finally, he said, the DNI—after Justice Department consultation—ruled that the issue at hand is not a matter of “urgent concern.”
Robert Litt, an attorney who served as the office of the DNI’s general counsel in the Obama administration, wrote on Lawfare that two of the three arguments are patently invalid.
First, even if the whistleblower is not an intelligence official, Litt wrote, the act applies to all complaints that relate to “the funding, administration, or operation of an intelligence activity” within the responsibility and authority of the DNI. Therefore, Litt continued, a complaint alleging “that the president or others at the White House interfered with intelligence reporting for political purposes would be covered by the statute because it affects an intelligence activity.”
Second, it is true that, back in 1998, President Bill Clinton wrote, in a signing statement accompanying the whistleblower protection act, that it “does not constrain my constitutional authority to review and, if appropriate, control certain classified information to Congress.” President Barack Obama restated this caveat in 2010. However, Litt notes, Clinton’s statement reserved the right to withhold information only “in exceptional circumstances” and, in those circumstances, the intel agencies would “contact the congressional committees promptly to begin the accommodation process that has traditionally been followed with respect to disclosure of sensitive information.” In the current case, the Trump administration has not begun—it has, in fact, resisted—any such accommodation.
However, Litt acknowledges that Klitenic’s third argument—that this complaint is not a “matter of urgency”—taps into as-yet-unresolved ambiguities in the law. The law empowers the inspector general to decide whether the matter is urgent. It does not give the DNI the power to overrule the inspector general on this point. However, it does not explicitly require the DNI to accept the IG’s ruling.
It’s also not entirely clear whether whistleblowers can come forth and testify to Congress in the event of a deadlock. The law says they can do so, as a matter of appeal, if the inspector general rules that the complaint is not an urgent matter. But the law offers no guidance for cases—like this one—where the IG rules it is an urgent matter but the DNI doesn’t pass the complaint on. If the whistleblower does come forth, they would be taking a very brave risk.
According to Loch Johnson, author of several books on intelligence and a former staff director of the House Intelligence Committee, no DNI has ever prevented a whistleblower from coming before the congressional intel committees—until now.
On one level, the administration’s case rubs against not only previous practice but also the intent and spirit of the law. During the Reagan administration, shortly after revelations of the Iran-Contra scandal, Congress created an inspector general at the CIA, precisely so an independent entity on the inside could facilitate oversight of secret operations gone rogue. The IG was required to meet with the House and Senate Intelligence Committees twice a year and, beyond that, to inform them immediately about any complaint. (The current intelligence community IG, a post created in 2010, inherited the same requirements.)
“Thus,” Johnson told me in an email, “the current whistleblower has the wind of law at his or her back.” If the administration’s arguments are right, then the whole purpose of an IG—the whole purpose of independent oversight—is called into question.
Yet the Trump administration has frequently invoked a very broad interpretation of the president’s constitutional powers—to declare a Muslim ban on travel to the United States, to declare a state of emergency to justify taking money from the Defense Department to fund construction of a wall on the Southern border (even when Congress has voted to forbid funding), and now to keep the House Intelligence Committee from getting information that it’s entitled to get by law. (It’s worth noting that the intel committees, which have long been entrusted with some of the government’s deepest secrets, have almost never been responsible for leaks.)
Imagine if Richard Nixon had burned the White House tapes, blocked John Dean and other aides from testifying before Congress, and locked himself in the Oval Office, impervious to pressure from even leading lights of his own party—that’s what we’re seeing with Donald Trump, except that his Republican Party controls a majority in the Senate and almost none of its members seem to care about what he’s doing.