Referring to obstruction of a whistleblower complaint by President Donald Trump’s administration, Speaker of the House Nancy Pelosi announced an impeachment inquiry would be launched.
Pelosi also issued an ultimatum to Joseph Maguire, the acting Director of National Intelligence, to provide the full complaint to the House intelligence committee when he testifies on September 26, or risk violating the Constitution.
It remains unknown what exactly a United States intelligence employee disclosed, but the inspector general for the “intelligence community” determined that the employee’s complaint—submitted on August 19—involved a matter of “urgent concern.”
“Urgent concern” is defined as a “serious or flagrant problem, abuse, violation of the law or executive order, or deficiency related to the funding, administration, or operation” that falls under the authority of the Director of National Intelligence. It likely involves classified information.
Differences of opinion over policy are not considered “urgent concerns.”
Michael K. Atkinson, the inspector general, requested that Maguire provide details of his determination to the congressional intelligence committees, as well as the complainant’s information. Maguire refused.
The general counsel for DNI, Jason Kilitenic, maintains that “no statute requires disclosure of the complaint to the intelligence committees” because “the disclosure in this case did not concern allegations of conduct by a member of the intelligence community or involve an intelligence activity under the DNI’s supervision.”
However, Atkinson fundamentally disagrees. He insists it relates to one of the “most significant and important of the DNI’s responsibilities to the American people.”
Maguire has refused to allow the inspector general to provide any details related to the “general subject matter” of the complaint to the congressional intelligence committees.
Under whistleblower protection law, which supposedly sets up so-called proper channels for disclosures, a complainant may share information with Congress members but only under the guidance of the Director for National Intelligence. Maguire will not help the complainant abide by “security practices” so they can avoid retaliation or legal jeopardy for their disclosure.
Maguire even consulted with officials at the Justice Department about the complaint. That likely creates a chilling effect because the FBI may take the step of investigating the whistleblower. It happened in the cases of the NSA Four—Thomas Drake, Bill Binney, Kirk Wiebe, Ed Loomis—who complained to an inspector general about matters of “urgent concern” related to surveillance collection.
Democratic Representative Adam Schiff, who chairs the House Permanent Select Committee on Intelligence, claimed this is the first time the “Director of National Intelligence has ever sought to overrule” the inspector general of the “intelligence community” and “conceal from Congress a whistleblower complaint.”
Hours before Pelosi announced an impeachment inquiry, the Republican-controlled Senate passed a resolution unanimously calling for the Director of National Intelligence to hand over the complaint to members of Congress.
News reports based upon unnamed sources have strongly suggested that the brewing scandal centers on a possible request to the leader of Ukraine to turn over dirt on Democratic presidential candidate Joe Biden and/or his son. If the leader refused, the Trump administration would slow down the provision of military aid to Ukraine, which the government has deployed over the past several years to challenge Russia.
Trump told reporters he froze the military aid but insisted it was because he wants European nations to contribute more funds, not because he wanted Ukraine to investigate the Biden family.
The New York Times reported on September 19, “A person familiar with the whistleblower’s complaint said it included in part a commitment that Mr. Trump made in a communication with another world leader. No single communication was at the root of the complaint, another person familiar with it said.”
“Mr. Trump often speaks with foreign leaders and is often unfettered,” the report added. “Some current and former officials said that what an intelligence official took to be a troubling comment could have been an innocuous comment.”
Regardless of the content of the complaint, the Trump administration’s clear obstruction of a whistleblower process finally pushed the Democrats to a point Pelosi and other House leaders deliberately avoided for many months.
Lower-ranked Democrats, including first-term Democrats elected in what are considered red districts, organized without the support of House Democratic leadership. By the afternoon of September 24, there were 170 House Democrats who backed impeachment.
That left Pelosi in a precarious position. She could either announce an inquiry or appear weak as the vast majority of Democratic representatives disregarded her resistance to impeachment.
Theoretically, the Democratic leadership does not have to do anything more than pursue an inquiry. It may choose not to introduce articles of impeachment until the outcome of the 2020 presidential election. Pelosi and other high-ranking Democrats have shown they would rather defeat Trump at the ballot box than remove him from office for corruption, even as the evidence against him becomes more and more staggering.
The whistleblower complaint may not be the proverbial smoking gun, but it is noteworthy that obstruction of a whistleblower complaint is what spurred action by Democrats.
For eight years under President Barack Obama, the Justice Department pursued more prosecutions of whistleblowers under the Espionage Act than all previous presidential administrations combined.
In 2013, NSA whistleblower Edward Snowden disclosed documents to journalists that exposed mass surveillance in violation of constitutional rights. Many pundits and politicians insisted he should have gone through proper channels. Had he done so, the administration would likely have taken the same steps—consult with Justice Department officials and undermine his ability to speak openly with representatives or senators. He likely would have never received permission to share his concerns with fellow citizens.
Director for National Intelligence James Clapper, who has been an outspoken critic of Trump, issued a directive in 2014 that clamped down on the free speech rights of intelligence employees and prohibited them from speaking to the press.
The Obama administration had a section in a whistleblower protection bill removed that would have “set up whistleblower protections for all intelligence officials,” similar to what protects FBI employees. Officials prevented “a process in the executive branch for reviewing whether security clearances were denied or revoked” because of “protected disclosure[s] of information under the whistleblower laws,” according to The Hill.
They established an “insider threat” program that made it easier for the management of agencies to fuel paranoia and discourage disclosures through the total surveillance of personnel. That prompted both Senators Ron Wyden and Chuck Grassley to warn that the administration needed to develop “safeguards” to prevent the “chilling of legitimate whistleblower communications and protect the confidentiality of any legally privileged information.”
All of these tools are available for the Trump administration, and the administration’s reported actions show intelligence employees are vulnerable to retaliation.