Once Again, the Story is the Destruction of Effective Whistleblowing
by tristero
I honestly don’t understand why the Times, among so many others, is downplaying the fact that Trump has now made it impossible for whistleblowers to come forward without suffering dire consequences, including jail time. Slate sums it up.
This process appeared to have worked as intended until the Ukraine whistleblower’s complaint landed on Maguire’s desk. ICWPA does not seem to give Maguire any leeway here: Under the law, he must accept Atkinson’s judgment and send the complaint to Congress. Yet Maguire has refused to do so, asserting that he does not believe the complaint constitutes an “urgent concern.” House Intelligence Committee Chairman Adam B. Schiff has sent Maguire multiple demands and even a subpoena for the complaint, but Maguire will not turn it over.
What is Maguire’s legal basis for withholding the complaint? The OLC [Office of Legal Counsel] told him it was not an “urgent concern.” Its reasoning, of course, is secret.
The OLC’s intervention to block the transmission of the whistleblower’s complaint is a startling breach of protocol. ICWPA defines an “urgent concern” as a “serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information.” Because the complaint remains hidden, we cannot know if it meets this standard. But the law does not give Maguire the power to answer that question. Instead, it grants Atkinson the authority to decide if a whistleblower’s complaint fits this definition. Moreover, it states that Maguire “shall … forward” the complaint to Congress if Atkinson determines it meets the statutory standard. Maguire has no apparent right to veto Atkinson’s judgment.
And yet, the OLC has conjured precisely such a right and handed it to Maguire. It is possible, if unlikely, that the OLC’s legal analysis is defensible. But it is impossible to assess that analysis because the office has suppressed it. And the OLC’s track record, especially under Trump, gives us good reason to doubt that its logic holds water.
Schumer wants to change that, but his own powers are limited. He has urged his Republican colleagues to “insist” that the Justice Department turn over the OLC’s opinion; congressional committees can’t normally gain access to such information, but Schumer appears to be seeking some accommodation from the administration. Senate Intelligence Committee Chairman Richard Burr has shown no indication that he will comply with Schumer’s requests.
There are many layers of alleged misconduct here, from the president’s own reported criminality to the administration’s efforts to conceal the president’s actions from Congress—and, by extension, the public. But it should not be forgotten that this cover-up is being facilitated by the office ostensibly responsible for keeping the executive branch in line with the law. The whistleblower’s complaint remains secret today because the OLC decided that a statute does not mean what it says. Instead of following the law, the office seems to be helping Trump cover his tracks.
And I’d just like to repeat that publicly releasing what will surely be bowdlerized transcripts — which Trump appears to be dangling as a substitute for releasing the whistleblower complaint to Congress — will do nothing but enable Trump to set the initial tone of the reporting and therefore, the story. As he did to catastrophic effect with the Mueller report.
This is very serious.