Intel Whistleblower Complaint Q&A Part 2: Constitutional Boogaloo

On Sept. 17, I did a deep dive into the legal issues raised by the Intelligence Community whistleblower complaint being withheld from the congressional intelligence committees by acting Director of National Intelligence (DNI) Joseph Maguire. At the time, the actual letters describing the rationale being employed by Maguire and his lawyer Jason Klitenic had not been publicly released, and so a large part of my analysis was an educated guess about what arguments they might be making, and how those might play out. I closed with a list of questions we needed to know answers to before we could fully analyze the situation.

The piece was published at 5:00 p.m. Three hours later, a letter laying out their arguments was made public, setting the ball rolling for a week full of new revelations about the nature of the complaint and how it was being handled.

I am happy to say that all of my predictions about the DNI’s possible arguments for withholding have been validated, but I failed to predict one significant argument, as well as the position being taken by the Intelligence Community Inspector General (ICIG) Michael Atkinson. Accordingly, I’m going to address those here, as well as other developments in the story.

Before I start, though, there is one thing I will not be discussing, and that is whether the conduct about which the whistleblower was complaining – President Donald Trump allegedly making improper promises to the president of Ukraine – was in fact unlawful. To me, that is a distinct issue, unrelated to the legal analysis of the DNI’s handling of this complaint, and engaging in a debate on that front only distracts from the very real problem that this complaint was mishandled in a way that no complaint should be mishandled – regardless of its content, and this series of events has highlighted previously unnoticed blind spots in the Intelligence Community Whistleblower Protection Act (ICWPA).

What DNI legal argument was unforeseen?

I anticipated that the DNI would make an argument that the whistleblower complaint did not involve an “urgent concern” as that term was defined in the statute, and I concluded that this was not the DNI’s call to make because the statute expressly gave that authority to the ICIG. I assumed that the DNI’s reasoning would flow from its claim that the conduct in question was not covered by the ICWPA because it occurred outside the Intelligence Community – namely, in the White House, and that assumption proved to be correct. However, since then, it has been reported that part of the DNI’s rationale was that “the whistleblower’s concerns came in part from learning information that was not obtained during the course of their work,” leading him to conclude that “the complaint didn’t fit the reporting requirements under the intelligence whistleblower law.” This is a completely frivolous argument.

This appears to be an attempt to import a standard from the False Claims Act, which states that an individual can only file a case against a government contractor alleging fraud if they obtained the evidence from a non-public source, such as being an employee of the company. However, that standard only requires that the information in question not be public, not that the whistleblower must obtain it “during the course of their work.” If a person is out drinking with a co-worker who then reveals that the company has been defrauding the government, that person can file a lawsuit under the False Claims Act. Same as if they overhear the incriminating information while walking past a supervisor’s office door. Simply speaking, how they learn the information doesn’t matter as long as nobody else in the government already knows it (such as through a news story or a government report). Even the ostensible source for this proposition – the False Claims Act – does not support the proposition Maguire is asserting, which only adds to the fact that there is absolutely no support for it in any whistleblower protection statute.

What ICIG position was unforeseen, and what are the ramifications?

Atkinson informed Congress that he cannot give them the whistleblower complaint or tell them anything about it because the DNI overruled his determination that it pertained to an urgent concern, stating, “I understand that I am bound by the determination reached as a result of the Acting DNI’s consultations with DOJ, and the ICIG will continue to abide by that determination.”

I previously argued that the DNI does not have the statutory authority to overrule such a determination, which the statute leaves solely to the discretion of the ICIG, and so I will not repeat that analysis here. I will add, however, that, to the extent that Atkinson believes that he is bound by Maguire’s determination because Maguire is his superior, that is incorrect for a more basic reason: An inspector general does not report to the head of his agency. He can only be appointed or removed by the president, and he operates independently as a matter of law and policy. An inspector general cannot be entrusted with conducting accurate and unbiased investigations into his own superior, and, historically, when an agency head has attempted to interfere with an investigation, it has prompted varying degrees of outrage from Congress and the public.

To the extent that he is deferring to the legal determination made by the DNI in “consultation[] with DOJ,” that too is not allowed by the law. The ICIG has his own legal counsel by law, and he is only allowed to request or abide by legal conclusions reached by lawyers “reporting directly to the Inspector General or another Inspector General.” Neither Klitenic nor any DOJ Office of Legal Counsel (OLC) lawyer report directly to Atkinson or another inspector general.

However, now that Atkinson has, in effect, allowed Maguire to substitute his legal determination for his own, it makes a new option available to the whistleblower. The only ICWPA provision authorizing a whistleblower to proceed directly to Congress makes such an allowance in situations where the ICIG determines that the complaint does not pertain to an urgent concern, not situations where the DNI obstructs the process because he does not agree. Now that the ICIG has deferred, however reluctantly, to the DNI’s determination, he has legally adopted that determination as his own, which means that the ICIG has determined that the complaint does not pertain to an urgent concern. This triggers the whistleblower’s right to go directly to Congress, as long as he obtains and follows the guidance of the DNI for handling sensitive information. That last requirement is still a sticking point, but the whistleblower is now one step closer to being able to petition the intelligence committees directly under the ICWPA. This interpretation does admittedly stretch the statute’s language, but far less than the arguments being made by the DNI’s interpretation that started this whole mess.

What are the restrictions on dissemination of the complaint and the whistleblower’s identity?

Simply put, the ICIG may not disclose the whistleblower’s identity, but he must forward the complaint to the DNI, who is not subject to any such prohibitions. It has been reported that OLC discussed the details of the complaint with the White House to determine if any privilege claims should be made, which means that Maguire revealed such details to OLC at least, if not to the White House himself. Unfortunately, this does not seem to violate any laws, which should, in my opinion, prompt Congress to consider amending the ICWPA to more generally prohibit dissemination of a whistleblower’s identity, so as to avoid even the possibility of reprisal. After all, as I noted before, there are no actual whistleblower protections in the ICWPA, and intelligence agencies have consistently embraced their ability to punish anyone who “tells outside the Family.”

Photo by Alex Wong/Getty Images

 

About the Author(s)

Kel McClanahan

Executive Director of National Security Counselors, a Washington-area non-profit public interest law firm which specializes in national security law and information and privacy law, through which he often represents Intelligence Community employees and contractors. Follow him on Twitter (@NatlSecCnslrs).