Jurisprudence

An Unaccountable Office Crafted a Secret Law to Conceal the Whistleblower Complaint

President Donald Trump makes a statement with Attorney General William Barr.
President Donald Trump makes a statement with Attorney General William Barr in the Rose Garden of the White House on July 11.
Alex Wong/Getty Images

In the latest crisis to engulf the Trump administration, a whistleblower has alleged that Donald Trump asked Ukrainian President Volodymyr Zelensky to investigate Joe Biden’s son Hunter Biden—purportedly in exchange for unblocking U.S. military aid to Ukraine. But the details of the allegation remain hazy, because the administration has refused to send the whistleblower’s complaint to Congress. This concealment arguably violated whistleblower protection law, but the Department of Justice’s Office of Legal Counsel reportedly justified it in a secret opinion. On Monday, Senate Minority Leader Chuck Schumer demanded that Senate Republicans compel the OLC to reveal “any legal opinion or other guidance” it provided to suppress the complaint.

The OLC is a small office that rarely garners much attention but holds extraordinary power, as the whistleblower episode illustrates. Its opinions are binding on the executive branch, yet they can be kept secret from everyone except high-ranking administration officials. The unfolding story of the whistleblower complaint may well be another chapter in the lengthy narrative of how the OLC has quietly facilitated some of the worst overreaches of executive power in recent history.

By law, the OLC’s job is to help the attorney general provide legal advice to the president and federal agencies. It is intended to exercise its judgment independently, not to serve as a rubber stamp for the administration. In recent years, however, the office has crafted dubious theories that seem designed to let the administration do whatever it wants. The OLC notoriously issued the “torture memos,” blessing the George W. Bush administration’s abusive interrogation methods, which were hidden from the public for years. It also crafted the policy that a sitting president cannot be indicted, which boxed in special counsel Robert Mueller’s investigation and report.

Under Attorney General William Barr and Assistant Attorney General Steven Engel, who is in charge of the OLC, the office has created a legal rationale for Trump’s agenda while shielding that same rationale from scrutiny. It has, for instance, approved Trump’s disastrous first travel ban, which several federal courts found unlawful. (Courts aren’t bound by OLC memos). The office barred the Food and Drug Administration from regulating drugs used in executions and declared that Congress may not obtain Trump’s tax returns. It has also asserted that the president’s counsel and senior advisers have immunity from congressional testimony.

And those are just the memos we know about, which represent the tip of the iceberg. The OLC claims authority to determine which of its opinions are made public, and it releases only a tiny fraction of its memos. When Barr led the office under George H.W. Bush, he hid an opinion that allowed the FBI to abduct people in other countries without the foreign state’s consent. After congressional pressure, he provided “principal conclusions” that misled lawmakers through egregious omissions.

Today, Barr and the OLC are once again at the center of a political firestorm. Under the Intelligence Community Whistleblower Protection Act, or ICWPA, whistleblowers who work for a federal intelligence agency must send their complaint to Michael Atkinson, Intelligence Community inspector general. Atkinson, a Trump appointee, must decide if the complaint is credible and of “urgent concern.” If it is, Atkinson must send the complaint to the head of the relevant agency: acting Director of National Intelligence Joseph Maguire, another Trump appointee. Maguire must, in turn, forward the complaint to congressional intelligence committees within seven days.

This process appeared to have worked as intended until the Ukraine whistleblower’s complaint landed on Maguire’s desk. ICWPA does not seem to give Maguire any leeway here: Under the law, he must accept Atkinson’s judgment and send the complaint to Congress. Yet Maguire has refused to do so, asserting that he does not believe the complaint constitutes an “urgent concern.” House Intelligence Committee Chairman Adam B. Schiff has sent Maguire multiple demands and even a subpoena for the complaint, but Maguire will not turn it over.

What is Maguire’s legal basis for withholding the complaint? The OLC told him it was not an “urgent concern.” Its reasoning, of course, is secret.

The OLC’s intervention to block the transmission of the whistleblower’s complaint is a startling breach of protocol. ICWPA defines an “urgent concern” as a “serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information.” Because the complaint remains hidden, we cannot know if it meets this standard. But the law does not give Maguire the power to answer that question. Instead, it grants Atkinson the authority to decide if a whistleblower’s complaint fits this definition. Moreover, it states that Maguire “shall … forward” the complaint to Congress if Atkinson determines it meets the statutory standard. Maguire has no apparent right to veto Atkinson’s judgment.

And yet, the OLC has conjured precisely such a right and handed it to Maguire. It is possible, if unlikely, that the OLC’s legal analysis is defensible. But it is impossible to assess that analysis because the office has suppressed it. And the OLC’s track record, especially under Trump, gives us good reason to doubt that its logic holds water.

Schumer wants to change that, but his own powers are limited. He has urged his Republican colleagues to “insist” that the Justice Department turn over the OLC’s opinion; congressional committees can’t normally gain access to such information, but Schumer appears to be seeking some accommodation from the administration. Senate Intelligence Committee Chairman Richard Burr has shown no indication that he will comply with Schumer’s requests.

There are many layers of alleged misconduct here, from the president’s own reported criminality to the administration’s efforts to conceal the president’s actions from Congress—and, by extension, the public. But it should not be forgotten that this cover-up is being facilitated by the office ostensibly responsible for keeping the executive branch in line with the law. The whistleblower’s complaint remains secret today because the OLC decided that a statute does not mean what it says. Instead of following the law, the office seems to be helping Trump cover his tracks.