So much have we dreaded a Constitutional crisis that most of us have been willing to forbear presidential acts that can reasonably be interpreted as high crimes and misdemeanors. But we may have reached the point of forbearing no more.
I refer to the Acting Director of National Intelligence’s refusal to share with Congressional intelligence committees, as required by law (50 U.S. Code § 3033), the substance of a whistleblower complaint deemed credible and urgent by the Inspector General of the Intelligence Community, Trump appointee Michael Atkinson.
An urgent whistleblower complaint exposes at least one of the following:
- A serious or flagrant problem, abuse, violation of law or executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity involving classified information. (It does not include differences of opinion concerning public policy matters.)
- 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.
- An action constituting reprisal or threat of reprisal in response to an employee reporting an urgent concern.
In accordance with the law, Atkinson shared the complaint with his boss, Acting Director of National Intelligence Joseph Maguire, a Trump appointee whose appointment has not been reviewed by the Senate. Maguire took the complaint to the Department of Justice, headed by Attorney General William Barr, notorious from Mueller report days for putting the president’s personal and political interests ahead of the integrity of his position as the nation’s chief law enforcement officer.
Whoever Maguire spoke to at Justice gave him a technical basis for instructing Inspector General Atkinson not to disclose the whistleblower complaint to the House and Senate intelligence committees, as legally required: 50 U.S. Code § 3033 applies to actions by employees and contractors of the intelligence community, but this whistleblower complaint concerns actions by the president of the United States.
As if that’s not even more urgent!
The Washington Post and New York Times are trying to uncover the substance of the whistleblower complaint. But if I’m reading the law correctly, there’s another way to get that information to the intelligence committees, if not to the public. Under Section 5.D, the whistleblower may contact the intelligence committees directly after notifying Atkinson and Maguire and obtaining from Maguire (through Atkinson) “direction on how to contact the [C]ongressional intelligence committees in accordance with appropriate security practices.”
Of course, Maguire probably wouldn’t give the whistleblower said direction.
If he doesn’t, I would urge the whistleblower to come forward without the Acting Director of National Intelligence’s direction regarding appropriate security practices. It’s a huge personal risk, not to mention a blot on the nation. But the whistleblower is likely motivated by genuine patriotism, as opposed to the symbolic patriotism of flag fetishism. For that reason, plus his or her own self-protection (if the argument stands that the whistleblower complaint doesn’t fall under the law, the whistleblower isn’t entitled to the law’s whistleblower protections) he or she should come forward. I’m hoping the whistleblower’s attorney is counseling the whistleblower to that effect, while explaining all the possible consequences that might follow.
We should know more next week, when Maguire is scheduled to testify to Congress. If he values rule of law over submission to an authoritarian leader, he will come clean. If he doesn’t testify or otherwise defies the plain intent of 50 U.S. Code § 3033, it’s time for Congress to impeach, starting with Maguire (if that’s possible, given his status as a non-Senate-approved appointee) and continuing to whoever in Justice rationalized the refusal to follow the law.
And if we learn the substance of the whistleblower allegation, and it is as credible and urgent as Atkinson attests, it may be time for Senate Republicans to admit the president needs to be impeached too.