'A deficiency in the law': How Trump accidentally exposed a whistleblower loophole
What happens when the administration won't tell Congress about a whistleblower complaint regarding the president? The answer to the once hard-to-fathom question is complicated.
“There’s no doubt that the current situation has identified a deficiency in the law because it wasn’t contemplated that there would be a refusal to transmit at least some information to Congress,” said Mark Zaid, a national security lawyer who represents whistleblowers.
“I wouldn’t be concerned just about these reports. I only get worked up when there doesn’t appear to be cooperation on whistleblowing,” Grassley said. He also noted that because the complaint involves the president, the information could be “constitutionally privileged.”
Story continuesBut Atkinson may be legally prohibited from sharing details of the complaint with the committee because of Maguire’s decision to withhold the information from Congress. According to Schiff, Maguire intervened to block the documents from being transmitted to lawmakers. Instead, Maguire diverted the complaint to the Justice Department, explaining to the committee that because the issue involved someone outside the intelligence community, it might involve matters of confidentiality and privilege.
“If [Schiff] wants to engage in a conversation before all the facts are on the table, that’s his prerogative,” said Rep. Mike Conaway (R-Texas), a member of the House Intelligence Committee. “Until we know the facts and understand what happened, it's premature for me to speak to anything other than we're looking at the issue.”
But once the DNI steps in, that workaround clause is essentially nullified. The whistleblower isn’t supposed to go to the committee in that scenario, and the IG’s hands are arguably tied.
The fact that Maguire is now trying to usurp Atkinson’s sole authority to determine whether this whistleblower’s complaint is both credible and matter of urgent concern “is a body blow to the intelligence community inspector general’s independence,” McCullough added.
Atkinson himself seemed to agree, characterizing the standoff as a possible symptom of a law that can be exploited in a letter to the House Intelligence Committee on Tuesday. Maguire’s move, he wrote, “may reflect a gap in the law that constitutes a significant problem and deficiency concerning the DNI’s responsibility and authority ... relating to intelligence programs or activities.”
Maguire made the call to redirect the complaint after consulting with the Justice Department. The DNI’s general counsel, Jason Klitenic, also determined that because the complaint doesn’t involve someone “within the responsibility and authority” of the intelligence community, it can’t be deemed “urgent” and therefore doesn’t require transmittal to lawmakers.
To several whistleblowing attorneys, Atkinson’s decision to alert the committee about the complaint — even if he wouldn’t divulge any information about it — was its own form of whistleblowing.
Still, because of the privilege issues at play and the legal loopholes, it’s theoretically possible that Congress could never see the actual complaint. That’s especially true because the invocation of executive privilege in this way is “consistent” with how past administrations have handled such issues, Zaid noted.Read more: Yahoo News
Democrats are saying the administration — not the law — is to blame.
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