[Update from the author at 11:30pm ET: This piece was published before the letters from the DNI to Schiff were made public. The release of those letters does not change my analysis.]
On September 13, House Intelligence Committee Chair Adam Schiff publicly announced that he had issued a subpoena to Acting Director of National Intelligence (DNI) Joseph Maguire because Maguire was refusing to release a whistleblower’s complaint filed under the Intelligence Community Whistleblower Protection Act (ICWPA) to the congressional intelligence committees as is required by law. Schiff said he had serious concerns that the complaint was being withheld from Congress “to protect the President or other Administration officials.” This prompted a whirlwind of speculation on Twitter about what wrongdoing the whistleblower was trying to reveal, why the DNI thought he could stop it, and who was involved in that decision. Because Schiff only released the two letters he sent to Maguire – a Sept. 10 demand for records followed by the Sept. 13 subpoena – we are left to attempt to reverse engineer the other side of the conversation to deduce what happened and try to figure out what will happen next.
To help make sense of the story, I thought I would try to answer the questions that people either have been asking online or should be.
What is the ICWPA?
The ICWPA holds the dubious distinction of being the only “Whistleblower Protection Act” that doesn’t actually include any whistleblower protections. To summarize the law’s extensive history, I’ll say: It originally was intended to provide protections for national security whistleblowers who wanted to go to Congress, but was watered down in the final iteration due to separation of powers objections from the executive branch. While keeping the original – and misleading – name, the final law only really established a mechanism for Intelligence Community whistleblowers to forward a complaint to the congressional intelligence committees by way of an inspector general. It is a breakdown in this process that Schiff is flagging.
What is the ICWPA process?
Simply speaking, if a whistleblower working for an Intelligence Community agency wants to bring something to the attention of the congressional intelligence committees, they must write up a complaint and give it to either their agency’s inspector general or the Intelligence Community Inspector General (ICIG), specifically stating that it is an ICWPA complaint. The ICIG then has 14 days to decide if the complaint pertains to an “urgent concern” and if it is credible.
Schiff’s letter states that in the case of this whistleblower, the ICIG determined the complaint was both credible and an “urgent concern.” So, how does the ICWPA define “urgent concern”? The statute defines it as
(A) 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, but does not include differences of opinions concerning public policy matters[;]
(B) A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration, or operation of an intelligence activity[; or]
(C) An action, including a personnel action described in section 2302(a)(2)(A) of title 5, United States Code, constituting reprisal or threat of reprisal prohibited under section 7(c) in response to an employee’s reporting an urgent concern in accordance with this section.
Once the relevant inspector general makes such a determination that the complaint credibly raises an urgent concern, he forwards it to the head of the agency – in this case, the DNI. The law then requires the DNI (or the relevant agency head) to forward the complaint to the congressional intelligence committees, along with any comments he wishes to make about the complaint, within seven days.
What can a whistleblower do if the DNI refuses to forward the complaint after receiving it from the ICIG?
The ICWPA is silent on this point, but it is illustrative to examine the provision governing a scenario in which the ICIG does not deem the complaint to be credible or an urgent concern. In such a case, the whistleblower can go straight to the congressional intelligence committees, but only after informing the ICIG that they are intending to do so and “obtain[ing] and follow[ing] from the head of the establishment, through the Inspector General, direction on how to contact the intelligence committees in accordance with appropriate security practices.”
Most relevantly to this discussion, there is no provision in the ICWPA for a whistleblower going straight to the congressional intelligence committees if “the head of the establishment” – i.e., the DNI – does not either forward the complaint to the committees or respond to a request for direction. It seems that while Congress foresaw the possibility of an inspector general making a decision with which a whistleblower disagreed, it did not envision an agency head obstructing the process.
That being said, there are constitutional arguments to be made for a whistleblower’s right to petition Congress directly outside of the ICWPA process; in fact, the ICWPA originally included a requirement – which did not make it into the final law – that the president must inform Intelligence Community whistleblowers of that fact, and 5 U.S.C. § 7211 specifically states that “[t]he right of employees, individually or collectively, to petition Congress or a member of Congress, or to furnish information to either House of Congress, or to a committee or member thereof, may not be interfered with or denied.”
The major pitfalls most often come when national security whistleblowers try to tell congressional staffers about their complaints. An agency may decide that even a congressional staffer with a security clearance lacks the “need-to-know” a classified whistleblower disclosure, and, according to a Justice Department Office of Legal Counsel (OLC) opinion, the agency can take adverse actions against such a whistleblower, such as revoking their security clearance. In fact, just such a case led to the passage of the ICWPA.
However, unlike a staffer, a sitting member of Congress does not require a security clearance and should be considered to have the “need-to-know” anything they want to know. Executive branch lawyers dispute the latter characterization (while acknowledging the former) and argue that members of Congress “are not inherently authorized to receive all classified information, but agencies provide access as is necessary for Congress to perform its legislative functions.” But this authority is a logical and inescapable outgrowth of the very separation of powers principles the executive branch so often cites. Simply put, need-to-know is a creation of executive orders, and executive orders cannot be applied to anyone outside the executive branch, especially not members of a co-equal branch. Legally speaking, this would also apply to congressional staffers, but Congress made a decision decades ago to compromise and concede the field to the executive branch on that count, which it did so by passing rules: House Rule X(11)(e)(2) and Senate Select Committee on Intelligence Rule 9.6.
Accordingly, the executive branch’s interpretation cannot withstand constitutional scrutiny when applied to sitting members of Congress, when Congress has not passed any rules conceding the argument and has in fact formally stated in the Findings section of the ICWPA itself: “Congress, as a co-equal branch of Government, is empowered by the Constitution to serve as a check on the executive branch; in that capacity, it has a ‘need to know’ of allegations of wrongdoing within the executive branch, including allegations of wrongdoing in the Intelligence Community.” In a case such as the present situation, the whistleblower would be on strong constitutional and statutory footing to take their complaint straight to a sitting member of Congress, especially an intelligence committee chair like Schiff. That being said, this is simply the “least bad” option available to a whistleblower in this position, and it may still come with serious practical consequences, such as the whistleblower losing his security clearance and having to sue the government for violating his constitutional rights.
What can the ICIG do if the DNI refuses to forward the complaint?
The ICWPA is also silent on this point, but as a matter of practice there are a few options. First, the ICIG would be well within his rights to simply inform the congressional intelligence committees that a whistleblower complaint credibly implicating an urgent concern was forwarded to the DNI and that the DNI was refusing to pass it on to Congress. From Schiff’s letter, it appears that this is what the ICIG did in this instance; Schiff notes that on Sept. 9, “the IC IG transmitted a letter to the Committee notifying it of the existence of a whistleblower complaint.” In effect, the ICIG himself is filing an ICWPA complaint about the DNI’s handling of the previous ICWPA complaint, like a whistleblowing matryoshka doll.
Actually revealing the facts of the original whistleblower’s complaint to Congress would be more problematic though, as it could reveal the identity of the whistleblower. The Inspector General Act states in pertinent part that “[t]he Inspector General shall not, after receipt of a complaint or information from an employee, disclose the identity of the employee without the consent of the employee, unless the Inspector General determines such disclosure is unavoidable during the course of the investigation.” This is not an insurmountable obstacle, since the whistleblower can always consent to such disclosure (and one would imagine they would be happy to), and even absent such consent, there is an argument to be made that disclosing the whistleblower’s identity to the congressional intelligence committees is “unavoidable during the course of the investigation” when the ICIG’s attempts to properly pass the information through the appropriate channels is being stymied.
However, should the ICIG decide to take the complaint straight to the congressional intelligence committees, he is relatively insulated from retaliation as a practical matter. According to the 2010 Intelligence Authorization Act (IAA), which established the ICIG, only the president may remove him from office, not the DNI. Moreover, if the president does remove him, he must then explain the reasons for the termination to the congressional intelligence committees within 30 days.
Here, it is important to remember that Schiff’s letters suggest that the complaint might implicate President Donald Trump or other administration officials. Obviously, this makes retaliation from the president more of a possibility. Still, even if the president did something like removing the ICIG for disobeying an order, he would still have to explain that decision to the committees (which would undoubtedly consider it to be unlawful), and the removal would allow the ICIG to make a lot of legal claims – ranging from whistleblower retaliation to constitutional violation – that would concern even the most ardent White House counsel.
Is Maguire violating the law by withholding this whistleblower complaint from Congress?
Yes, and maybe no. The question is better phrased as, is Maguire impermissibly violating the law by doing so? He is clearly violating the ICWPA by withholding this complaint, but the ultimate answer hangs on whether he had a legally cognizable reason for the violation. It’s no different from someone who runs a red light (technically violating the law) to avoid an accident (a valid defense under the law). However, even if a court found that he had no valid reason, he would not be guilty of any crime unless Congress chose to hold him in contempt, which the Justice Department would certainly oppose.
What legal authority might Maguire believe he has to withhold a credible whistleblower complaint about an urgent concern from Congress?
I phrased this question as “might Maguire believe he has” instead of “does the DNI have” because it is unclear from Schiff’s letters exactly what arguments Maguire is making here, and there is every indication that the arguments he is making are not actually sound arguments. All Schiff’s subpoena says is that Maguire has claimed that “the complaint concerns conduct by someone outside of the Intelligence Community and … involves confidential and potentially privileged communications.” The problem is, those eighteen words are incredibly ambiguous from a legal standpoint, and they could implicate a host of actual legal arguments. Accordingly, this section will be discussing the arguments Maguire could conceivably make, along with an assessment of their validity.
To justify withholding the whistleblower complaint from Congress, Maguire appears to make one or more of four arguments: (1) he has the authority to overrule the ICIG’s determination that the complaint includes a credible allegation implicating an urgent concern (perhaps by asserting that the conduct is not covered by the ICWPA); (2) he is authorized to withhold the complaint because it implicates the deliberative process privilege; (3) he is authorized to withhold the complaint because it implicates the executive privilege over national security matters; and/or (4) he is authorized to withhold the complaint “to protect vital national security interests of the United States.”
Does the DNI have the authority to overrule the ICIG’s determination that a complaint is credible, that it pertains to an urgent concern, or that the matter is covered by the ICWPA?
No. The ICWPA specifically gives inspectors general the final say in whether a complaint is credible or whether it pertains to an urgent concern. Moreover, to the extent Maguire might be arguing that he can overrule the ICIG’s determination that the conduct in question is within the scope of the ICWPA, that is also not his call. The law gives inspectors general their own legal counsel specifically so they can make legal judgments about the scope of their jurisdiction and not be dependent on lawyers representing the agencies they oversee. As to whether or not Maguire would even be correct about the coverage of the law, Bob Litt has aptly refuted that assertion over at Lawfare.
Does the DNI have the authority to withhold an ICWPA complaint from the congressional intelligence committees to protect information for which it claims the deliberative process privilege?
The current jurisprudence on this matter supports the argument that the executive branch can assert the deliberative process privilege to withhold information that would reveal its decisionmaking processes from a congressional subpoena, but says that in doing so the executive branch must jump through some hoops. The relevant ruling, however, is procedurally complicated and of dubious precedential value, due to the political machinations of the parties in litigation.
As Andy Wright discussed at the time, the case between the House Oversight and Government Reform Committee and the Obama administration over the “Fast and Furious” gunwalking scandal involved, in pertinent part, an assertion of the deliberative process privilege to withhold Justice Department records in the face of a subpoena from the committee chair, Republican Congressman Darrell Issa. Judge Amy Berman Jackson held in part that an agency could make such a claim (despite the committee’s arguments to the contrary), but that it must produce a privilege log to the committee indicating what was withheld and why. The committee appealed the case to the D.C. Circuit, but as the appeal was pending, Trump was elected president, and the parties’ political agendas shifted. The Republican majority no longer wanted a decision on the books that could be used against the new Republican administration, and so the parties attempted to convince Jackson to vacate her rulings, which she declined to do. The committee then asked the D.C. Circuit to voluntarily dismiss the appeal, which it did do, ending the litigation but keeping Jackson’s rulings on the record.
Because Jackson’s opinion was just the opinion of one district court judge, the argument can be still be made that she was wrong and that another judge should go the other way, which I would expect both sides to argue if this subpoena ends up in litigation. Congress is certain to renew its argument that the deliberative process privilege cannot be cited to keep information from Congress, and the DNI is certain to argue that he cannot be required to provide a privilege log when he does so. As a result of this confusion, it is unclear if Maguire is even making this claim (although the sparse description of his arguments in Schiff’s letter could be interpreted to cover it), since he has not provided Congress with a privilege log, but that may be because he does not believe he has to. The short answer, then, is a definite maybe.
However, if Maguire is invoking the deliberative process privilege, he will face an additional hurdle thanks to Jackson’s ruling (and general case law on the matter): The deliberative process privilege must be balanced against Congress’s need for the information. This requirement would weigh strongly in Schiff’s favor in a case involving a specific whistleblower complaint which an inspector general certified as credibly raising an urgent concern pursuant to a specific statutory authority, if only because it would also trigger the exception to the privilege for information pertaining to official misconduct, should Schiff’s allegations on that issue prove correct. So, in this case, even if the abstract legal answer is that the deliberative process privilege could apply, the answer specific to these facts is that that general rule would not be legally sufficient to withhold this complaint unless Maguire convinces a judge to ignore Jackson’s rulings.
Does the DNI have the authority to withhold an ICWPA complaint from Congress to protect information for which it claims executive privilege over military, diplomatic, or sensitive national security secrets?
In the case United States v. Nixon, the Supreme Court rejected former President Richard Nixon’s claim that all of the Watergate tapes were covered by executive privilege and could therefore be withheld from a subpoena. In an unfortunate piece of dicta, the unanimous Court stated:
Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.
* * *
[The President] does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.
* * *
Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President’s powers, it is constitutionally based.
In doing so, it created an argument that has been made by executive branch lawyers ever since, in which these sentences are twisted around to say something completely different:
Any doubt that the privilege is rooted in the Constitution was dispelled in United States v. Nixon, in which the Supreme Court explained that, to the extent a claim of privilege “relates to the effective discharge of the President’s powers, it is constitutionally based.” The Court went on to recognize expressly that a “claim of privilege on the ground that [information constitutes] military or diplomatic secrets” … necessarily involves “areas of Art. II duties” assigned to the President. … It is well settled … that the courts should accord the “utmost deference” to the expertise and judgment of national-security officials.
As a result of this argument, even the committee report for the ICWPA said, “Insofar as this privilege is constitutionally based, the committee recognizes that [the ICWPA] cannot override it. In view of the uncertain nature of the law in this area, the committee intends that [the ICWPA] will neither accept nor reject any particular view of Presidential privilege but only preserve for the President the opportunity to assert privilege where he deems it necessary.”
Which brings us to the particulars of this case. Schiff told CBS News’ Margaret Brennan on Sept. 15 that Maguire had claimed that he was instructed by a “higher authority, someone above the DNI” to refuse to forward this complaint to the congressional intelligence committees, which indicates the involvement of the White House (since everyone capable of instructing the DNI to do anything works there).
As such, this question becomes less about what authority the DNI has in this area than what authority the president has. According to the interpretation of Nixon presented in executive branch arguments and the ICWPA committee report, the president could invoke this privilege in extraordinarily sensitive cases, involving national security secrets, but it would have to be very narrowly tailored and capable of withstanding searching judicial review. Based on Schiff’s letters, it does not appear that these claims satisfy either of those criteria, and should this come to litigation, there is room for the committee to make an argument that the ICWPA committee report should be ignored by the court and that this privilege does not in fact exist. Such an argument would be difficult, but not impossible.
Does the DNI have the authority to withhold an ICWPA complaint from the congressional intelligence committees to protect vital national security interests of the United States?
Probably not, but for nuanced reasons. As an abstract question, the provision for “protect[ing] vital national security interests of the United States” comes from the 2010 IAA. It provides:
The Director of National Intelligence may prohibit the Inspector General of the Intelligence Community from initiating, carrying out, or completing any investigation, inspection, audit, or review if the Director determines that such prohibition is necessary to protect vital national security interests of the United States.
It is not immediately obvious from this provision that it was ever intended to apply to a decision regarding the forwarding of an ICWPA complaint, since that action cannot easily be described as “initiating, carrying out, or completing any investigation, inspection, audit, or review.” While the DNI could definitely prohibit the ICIG from investigating the allegations in the ICWPA complaint pursuant to this provision, the mere act of transmitting it to Congress does not appear to be covered.
However, even assuming that such an action would be covered by this provision, it is clear that if this is the authority relied upon by Maguire in this case, he has not properly invoked it, as is evidenced by the remainder of this provision. Whenever the DNI takes such an action to prohibit the ICIG from taking some action, he must inform Congress and the ICIG of the decision within seven days. Maguire did not do so. Therefore, if he is relying on this provision, that reliance is misplaced.
If the Justice Department was consulted, what does that mean?
According to Schiff’s subpoena, Maguire “consulted the Department of Justice about the complaint,” which has led many commenters to conclude that DOJ is somehow involved in the allegations. I do not believe this is necessarily the case. It is far more likely that DOJ is only involved because the DNI’s office asked the OLC whether he could legally withhold the complaint from the congressional committees. This is standard practice for an agency when arguing with Congress: get an OLC opinion supporting your position, then cite it when dealing with Congress.
While Schiff’s letter does not make it clear how he learned of DOJ’s involvement, the logical assumption would be that the DNI’s office referenced an OLC opinion it in his communications with Schiff’s office.
What other questions should we be asking?
Much of the confusion around this case stems from the fact that Schiff only released his initial letter and his subpoena, but did not release the ICIG’s letter notifying the committee of the existence of the complaint or Maguire’s response refusing to transmit the complaint. As a result, it has been necessary to extrapolate the DNI’s actual position and the reasoning behind it from Schiff’s characterizations. A more thorough analysis (focusing only on the contentions actually being made) could be performed if the congressional intelligence committees, the DNI, or the ICIG clarified the following issues:
What are the reasons actually stated by Maguire for refusing to transmit the whistleblower’s complaint?
What legal analysis did Maguire provide in its refusal letter?
What was the nature of the ICIG’s correspondence with Schiff informing him of the existence of the complaint?
What context did Maguire give for DOJ’s involvement?
Has the president actually claimed executive privilege?
How is the DNI interpreting Judge Jackson’s ruling?
Has the complaint been transmitted to the Senate Intelligence Committee?
Where is the Senate committee coming down on this controversy?
Image: House Intelligence Committee Chairman Adam Schiff (D-CA) on July 24, 2019 in Washington, DC. Photo by Chip Somodevilla/Getty Images