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There’s Never Been a Whistleblower Case Like This Before

The whistleblowing process Congress set up for the intelligence community has been used up to 20 times a year, according to official reports. But never like the Trump complaint.

Adam Rawnsley9.19.19 9:24 PM ET

When Congress first put together a whistleblower process for employees of the intelligence community, lawmakers probably didn’t expect that it would be used to report potential misconduct by the president, but here we are. There’s a complaint by someone in the intelligence community that President Trump made some inappropriate promise to a foreign leader over a series of communications. So just how bizarre is this scenario and how is the whistleblower process supposed to work?

Welcome to Rabbit Hole. 

Untrodden territory: The whistleblowing process to report intelligence community employee concerns to Congress is used anywhere from four to 20 times a year, according to official reports. From what little we can tell from those reports, the intelligence community has never faced an issue remotely like the one raised by a complaint against Trump. The complaint, first filed on Aug. 12, reportedly involves Trump’s conversations with an unnamed foreign leader about Ukraine, according to The Washington Post

The Office of the Director of National Intelligence includes a tally of all the “Congressional disclosures” it made under the law in semiannual reports. Since the reports were first published in 2014, the DNI’s office has made about 76 disclosures to Congress under the law, according to a tally by Rabbit Hole. The important caveat is that not all of those 76 were found to be of legitimate “urgent concern” by the DNI’s inspector general, as the one concerning Trump was.

The character of the whistleblower complaints the DNI usually processes is also vastly different from the Trump complaint. The DNI’s office occasionally publishes the names of agencies where whistleblowers have complained to Congress under the same law, but White House whistleblowers haven’t appeared in any of the reports. 

Generic descriptions of the kinds of complaints the DNI discloses to Congress also show how unique the Trump issue is. Complaints often touch on bread-and-butter issues at the agency level, including “inappropriate giving and acceptance of signing bonuses,” mishandling of classified information, administration, and labor and financial misconduct. The most senior identifiable official in the reports thus far has been an unnamed inspector general alleged to be “compromised” in their independence. 

Trust the process? The law being used by the whistleblower against Trump was intended to provide a venue for whistleblowers to raise serious concerns outside the executive branch about intelligence activities while still preserving the security of classified information. If an intelligence community employee has a serious concern, they can report it to the intelligence community inspector general under the Intelligence Community Whistleblower Protection Act. If the inspector general finds the complaint has merit to it, they pass it along to the director of national intelligence, who has seven days to pass it along to Congress.

In the case of the mystery complaint, intelligence community Inspector General Michael Atkinson agreed that the complaint was about a serious issue and had merit to it and forwarded it to the acting Director of National Intelligence, Joseph Maguire, who sat on it. When pressed by Rep. Adam Schiff (D-CA) on why he hadn’t passed along the complaint as required by law, Maguire at first stonewalled and then said the Justice Department’s Office of Legal Counsel disagreed with the inspector general about the merits of the case. 

One slight problem: Nowhere in the law does it say agencies are supposed to submit complaints to the Justice Department’s Office of Legal Counsel or that the office is allowed to overrule the determination of an inspector general.

Substantive: The way the intelligence community’s top watchdog handled the complaint also hints at how important the underlying issue is, experts say. “It’s significant that the intelligence community inspector general (IG) substantiated this whistleblowing disclosure as an urgent concern. There’s a rigorous review process before any whistleblower gets that treatment,” said Irvin McCullough, a national security analyst at the Government Accountability Project. “That substantiation means that the intelligence community’s independent watchdog needed to conduct an investigation, and the administration’s refusal to allow that same information to go to Congress is a blow to the IG’s independence.”

Vague origins: So can the Justice Department overrule on what counts as an urgent concern? That’s just one of many difficult questions we don’t have firm answers to. The executive branch doesn’t appear willing to budge on the disclosure, and courts are often reluctant to intervene in feuds between the branches on national security issues. 

Aside from who’s allowed to make the determination of what constitutes an “urgent concern,” there’s also the issue of what exactly an urgent concern is. Lawmakers who created the whistleblowing channel in 1998 left important parts of it somewhat vague from the very beginning. 

The legislation offers a somewhat circular definition. It says an “urgent concern” is a “serious or flagrant problem, abuse, violation of law or Executive order, or deficiency.” And what kinds of things fall under that definition? Violation of law is pretty self-explanatory, but the rest is muddy.

When the House Intelligence Committee first held a hearing on the Intelligence Community Whistleblower Protection Act back in 1998, one Congressional Research Service analyst testified that “No definition of ‘particularly serious or flagrant problems’ exists in public law or related congressional reports.” 

The kinds of examples the law was intended to address, as explained by the committee’s chairman and the bill’s sponsor, former Rep. Porter Goss, bear no relation to the high constitutional drama playing out at the most senior levels of government with Trump. During a hearing on the legislation in 1998, Goss included two whistleblowers who had told the committee about an unreported intelligence failure and an administrative issue at an intelligence agency as examples of the kinds of issues he hoped the law would address.

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