Trump's Ukraine whistleblower scandal sets a dangerous DOJ legal precedent

As a result, the executive branch could neuter many (if not most) of the vital whistleblower statutes enacted to increase accountability.
Image: Acting Director of National Intelligence Joseph Maguire is sworn in before testifying
Acting Director of National Intelligence Joseph Maguire is sworn in before testifying at a hearing of the House Permanent Select Committee on Intelligence on Sept. 26, 2019.Brendan Smialowski / AFP - Getty Images
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By Steve Vladeck, professor at the University of Texas School of Law

On Thursday, acting Director of National Intelligence Joseph Maguire faced members of Congress eager to investigate the details of a whistleblower complaint involving President Donald Trump’s apparent strong-arming of the Ukrainian government in an effort to dig up dirt on Joe Biden’s family. The heated questioning included several exchanges probing why Maguire and the Trump administration at first refused to share the complaint with Congress, a standoff that has now escalated into an impeachment inquiry.

Although the substance of the complaint — and the scandalous behavior it describes — should be the focus of ongoing investigations, Congress is also very interested in who was involved in trying to withhold the complaint. As House Intelligence Committee Chairman Rep. Adam Schiff, D-Calif., said during the hearing, subjects of urgent whistleblower complaints — even presidents — should not be able to easily stifle those complaints.

Legally, this evolving scandal all arises from a dispute over the terms of an obscure federal law — the Intelligence Community Whistleblower Protection Act of 1998.

Here are the current facts: We know an intelligence community whistleblower formally complained about what he believed to be a matter of “urgent concern” to the intelligence community inspector general (the “ICIG”). The ICIG found the complaint credible, a determination that should have forced the (acting) director of national intelligence to forward the underlying whistleblower complaint, the ICIG’s credibility determination and his own comments to the congressional intelligence committees. When Maguire refused to do so, the ICIG complained, and Schiff sounded public alarm bells. The rest is history. By Wednesday afternoon, Congress had in fact been allowed to review the complaint, and so the legal dispute that had provoked the contretemps dissipated. (The complaint was released to the public Thursday.)

But we also learned Wednesday that Maguire’s refusal to forward the complaint to Congress was based upon a formal opinion rendered by Steven Engel, the politically appointed head of the Justice Department’s Office of Legal Counsel (OLC). The arguments it advances are downright scary.

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Maguire’s refusal to forward the complaint to Congress was based upon a formal opinion rendered by Steven Engel. The arguments it advances are downright scary.

In a nutshell, the OLC concluded that, even though the Intelligence Community Whistleblower Act leaves to the ICIG the initial determination of whether a complaint satisfies the statutory definition of an “urgent concern,” if the ICIG was wrong in its determination, the government is absolved of any obligation to transmit the complaint to Congress. Put another way, a whistleblower complaint can only be sent to Congress if the Justice Department’s counsel agrees with the ICIG’s determination that the complaint meets the statutory criteria.

Even if the OLC was right and the ICIG was wrong about whether the complaint involved an “urgent concern” (and there are good reasons to side with the ICIG), there are still three different problems with the OLC’s conclusion. First, the text of the intelligence community whistleblower law doesn’t remotely support it. 50 U.S.C. § 3033(k)(5)(C) is mandatory — once the ICIG transmits a complaint he finds credible to the director of national intelligence, “the director shall, within 7 calendar days of such receipt, forward [the complaint and the ICIG’s evaluation thereof] to the congressional intelligence committees, together with any comments the director considers appropriate.”

If Congress meant to leave it to anyone other than the ICIG to decide whether the complaint should be sent to the legislature, it could’ve said so. Instead, all it allowed was the possibility that the (acting) director would add “any comments [he] considers appropriate.” Even if the ICIG’s analysis of the whistleblower’s complaint was erroneous, the statute still mandates congressional disclosure — perhaps alongside an explanation from the (acting) director as to why he disagreed.

Second, the entire purpose of whistleblower laws, like the one Congress enacted in 1998 with regard to intelligence agencies, is to protect both whistleblowers and their complaints from political interference. It wouldn’t make much sense to empower a government employee to blow the whistle on his superiors if those same superiors can take the whistle away. That’s a big part of why federal agencies have inspectors general — who, although appointed by the president, are meant to operate independently of the agency’s political leadership. The OLC’s reading would defeat the purpose of Congress vesting such authority in the ICIG, rather than the head of national intelligence.

Third, and more generally, the OLC’s argument is based on the misleading idea that the Office of Legal Counsel is the de facto Supreme Court of the executive branch — and that its analysis of statutes, in all cases, supersedes the analysis of any other executive branch officer. It’s a bit more complicated than that.

Federal law provides that the “head of an executive department may require the opinion of the attorney general on questions of law arising in the administration of his department.” And the attorney general, in turn, has delegated his power to render such opinions to the OLC — which is under his purview within the Department of Justice. Thus, on matters on which the “head of an executive department” (here, the acting director of national intelligence) is the final arbiter, it makes sense that he will follow the OLC’s advice when he seeks it.

But, as explained above, the director of national intelligence is not the arbiter of whether a whistleblower complaint meets the relevant statutory criteria; the ICIG is. Put another way, Congress gave the decision-making authority in this case to the ICIG, not to the acting director of national intelligence — or the OLC for that matter.

By that logic, it would be impossible for Congress to insulate any legal analysis within the executive branch from the OLC’s review.

This may seem like a technicality, but step back for a moment: There are numerous contexts in which Congress has delegated some kind of adjudicatory authority to an executive branch officer. The OLC’s theory is that, in all cases, that authority must be exercised consistently with how the OLC interprets the relevant statutes, even if the officer Congress identified disagrees. By that logic, it would be impossible for Congress to insulate any legal analysis within the executive branch from the OLC’s review — and, as here, disapproval. In contexts in which Congress intentionally meant to take particular legal analysis out of the hands of an agency’s political leadership — for example, when there is a high risk of partisan interference — the OLC’s current interpretation would defeat Congress’s intent.

There are certainly more important headlines coming out of the Ukraine story. But insofar as future executive branch lawyers will look to this OLC opinion as precedent, it is important to emphasize why it fails as a legal theory. Because if it stands, the executive branch could effectively neuter many (if not most) whistleblower statutes — laws Congress enacted to help increase the executive branch’s accountability. That should bother us regardless of how we feel about the current president, and regardless of whether we agree with the OLC, or the ICIG, about whether the whistleblower’s complaint was appropriate in the first place.

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