September 19, 2019
Acting Director of National Intelligence Joseph Maguire—who took over the post just over a month ago, on August 15, when Dan Coats stepped down— has refused to comply with a deadline to hand over a whistleblower complaint to the House Permanent Select Committee on Intelligence, CNN reports.
The committee had announced its intent to issue a subpoena on September 13, noting that the complaint had been deemed by the Inspector General of the Intelligence Community, Michael Atkinson, to be “credible and urgent.”
At that time, Representative Adam Schiff (D-California), Chairman of the House Intelligence Committee put out a statement that read: “A month ago, a whistleblower within the intelligence community lawfully filed a complaint regarding a serious or flagrant problem, abuse, violation of law, or deficiency within the responsibility or authority of the Director of National Intelligence. The Inspector General of the Intelligence Community found that complaint not only credible, but urgent. More than ten days since the Director was obligated to transmit the complaint to the intelligence committees, the Committee has still not received the disclosure from the Director, in violation of the law.
“A Director of National Intelligence has never prevented a properly submitted whistleblower complaint that the IC IG determined to be credible and urgent from being provided to the congressional intelligence committees. Never. This raises serious concerns about whether White House, Department of Justice or other executive branch officials are trying to prevent a legitimate whistleblower complaint from reaching its intended recipient, the Congress, in order to cover up serious misconduct.
“After Watergate exposed significant intelligence abuses, a critical bargain was struck: In exchange for the Intelligence Community’s willingness to reveal closely guarded national security secrets, the congressional intelligence committees and leadership promised to handle that information responsibly. It was also of vital importance that intelligence officials have a lawful and protected means of bringing misconduct to the attention of Congress and the public. By withholding a credible whistleblower complaint that potentially deals with executive branch wrongdoing, the DNI is in violation of the applicable statute and has made itself a party to the concealment of potentially serious misconduct.”
However, on the night of September 17, the Office of the Director of National Intelligence sent letters to committee Chairman Adam Schiff, a California Democrat, and Ranking Republican Devin Nunes of California, saying the complaint “does not meet the definition of ‘urgent concern’ because it does not relate to ‘intelligence activity,’ “ CNN reported.
The complaint “involves confidential and potentially privileged matters relating to the interests of other stakeholders within the Executive Branch,” a copy of the letter, obtained by CNN, says, adding that complying with the committee’s requests “will necessarily require appropriate consultations.”
In the letter, the Office of the Director of National Intelligence reveals that the complaint does not involve anyone in the intelligence community but rather “stakeholders within the Executive Branch.” As a result, its lawyer argues, the complaint is not of “urgent concern” to the committee.
The office says it plans to work with the House intelligence Committee but given that executive branch members are involved, there are “confidential and potentially privileged matters” that “will necessarily require appropriate consultations.”
What’s more, Maguire has indicated that he will not appear at a scheduled congressional hearing on Thursday; his office says he “is not available on such short notice.”
In response, Schiff said: “The IC IG determined that the complaint is both credible and urgent, which is why the Committee must move quickly. The Committee’s position is clear—the Acting DNI can either provide the complaint as required under the law, or he will be required to come before the Committee to tell the public why he is not following the clear letter of the law, including whether the White House or the Attorney General are directing him to do so. He has yet to provide the complaint in response to the Committee’s subpoena, so I expect him to appear on Thursday, under subpoena if necessary.”
According to CNN, Schiff also argued that Maguire had acted outside the authority of his post by consulting with the Department of Justice about the complaint as he involved “another entity within the Executive Branch in the handling of a whistleblower complaint.
Schiff declined to say whether he has been contacted by the whistleblower or their legal representation, saying he wouldn’t want to jeopardize them.
However, a source familiar with the situation told CNN on Tuesday that legal counsel for the unknown individual is discussing next steps.
However, the options appear to be limited.
A source familiar with the case told CNN that the Intelligence Community Whistleblowers Protection Act likely only offers one real path forward: circumventing the Office of the Director of National Intelligence and giving the complaint directly to the committee.
That route is not likely to be taken, CNN said: At the end of the day, the statute doesn’t clearly allow the whistleblower to go straight to Congress.
Research contact: @CNN