Acting DNI Maguire Is Sh*t Scared Of SOMETHING
The Trump administration has issued its daily FUCK YOU to Congress, just as it has done every one of the 970 days since January 20, 2017. Acting Director of National Intelligence (DNI) Joseph Maguire informed the House Intelligence Committee that he intends neither to follow the law nor to produce documents or appear in response to a congressional subpoena. Which is pretty goddamn ballsy, since he's the one personally risking a contempt of Congress charge.
Here's our coverage from Monday, but in a nutshell, the law says that intelligence community whistleblowers can report a "serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information" to the Intelligence Community Inspector General (ICIG), who then has 14 days to evaluate their complaints. If the ICIG finds a complaint to be both "credible" and "urgent," he forwards it to the DNI, who "shall, within 7 calendar days of such receipt, forward such transmittal to the congressional intelligence committees, together with any comments the Director considers appropriate."
And yet, despite the clear, mandatory "shall" in this statute, the DNI did fuck all to comply with the law when confronted with damning information about a "higher authority" within the Executive Branch. The DNI is a cabinet official, so we're going to guess that a "higher authority" means someone in the White House pretty close to the president. Gambling at Rick's, et cetera.
Instead, the DNI asked the Justice Department to dummy up some bullshit to get him out of revealing whatever embarrassing fuckery is in the complaint, forcing the ICIG to become a whistleblower himself. So it looks like we're all about to get to know ICIG Michael Atkinson, who took it upon himself to inform Congress about the existence, but not the substance, of the whistleblower complaint. At which, point Adam Schiff subpoenaed the documents directly and demanded that Acting DNI Maguire get his ass up to Congress on Thursday to explain himself.
You will be FOR SHOCKED to find that DNI Slim Shady responded by putting one of those fingers on each hand up. In letters to Schiff and leadership of the House and Senate Intelligence Committees, Jason Klitenic, General Counsel for the DNI, barfed out several creative theories as to why his client didn't have to abide by the law.
What if Acting DNI Maguire looked at the complaint and decided for himself that it's not really "urgent" after all? Okay, yes, 50 US Code § 3033(k)(5)(B) specifically provides that "the Inspector General shall determine whether the complaint or information appears credible." But like, if you ignore that section, then it's totally the DNI's call!
Or, maybe the complaint involves someone in the White House, as Adam Schiff has suggested, which is outside the "authority of the Director of National Intelligence" and so the DNI's hands are tied? (Cough, JARED, coughcough.) In his September 13 letter to the Intelligence committees, Klitenic claims that the whistleblower's complaint "does not allege misconduct within the Intelligence Community or concern an intelligence activity subject to the authority of the DNI" and that it "involves confidential and potentially privileged communications," so "the DNI lacks unilateral authority to transmit such material to the intelligence committees." Maguire would love to help ya, boys, but his hands are tied! Which is all very interesting, except, once again, that's not the DNI's call to make! But how 'bout we all just pretend that it is, 'kay?
Wait, what if this is all Bill Clinton's fault? Huh huh? When President Clinton authorized the original Intelligence Community Whistleblower Protection Act of 1998, he issued a signing statement saying that it "does not constrain my constitutional authority to review and, if appropriate, control disclosure of certain classified information to Congress." So maybe there's privileged or "confidential" information in the complaint, and if Adam Schiff doesn't like it, he should just take it up with Old Bill!
Hahahahaha! Let see ... NO, NO, and FUCK YOU, NO. Although the lecture on comity and adherence to norms -- "We are disappointed, however, that rather than follow our established practice of working together, HPSCI immediately served a subpoena for documents and demanded the Acting Director's immediate testimony" -- is a nice touch.
If Maguire and the rest of the scofflaws at the White House gave two shits about "established practice," they'd have told HPSCI about the existence of the complaint, and specified how and why the Executive Branch was deviating from the statute to protect whatever confidential information they're desperate to bury. Instead they ignored the law in its entirety, causing ICIG Atkinson, a 15-year veteran of the Justice Department, to lose his shit and go directly to Chairman Schiff.
Since we're already deep into the weeds here, let's spell out exactly how the DNI has deliberately put this whistleblower in a box. As Robert Litt points out at Lawfare, if the ICIG is the one who finds the complaint is not "urgent" or "credible," the law mandates that he tell the whistleblower how to safely take his complaint directly to Congress without risking prosecution for disclosing classified information. But there's no provision for a complaint that gets shitcanned by the DNI himself. So if the whistleblower or the ICIG takes this directly to HPSCI, he or she risks prosecution for unauthorized disclosure of classified material or failure to safely transport classified documents.
And, oh, by the way, the Washington Post says that the whistleblower is a former staffer on the White House National Security Council, which means that half of DC has probably worked out exactly who this is by now. So the DNI's assurances that they would nevernotever retaliate against a whistleblower aren't worth shit if this person is facing tacit threat of prosecution for mishandling classified documents if he or she doesn't STFU.
CNN's sources report that "legal counsel for the unknown individual is discussing next steps." But, as Jamil N. Jaffer, director of the National Security Institute at George Mason University's Antonin Scalia Law School and former senior counsel for HPSCI, told CNN, "At the end of the day, because the relevant statute doesn't clearly permit the whistleblower to go directly to Congress in the exact circumstances in play here -- although there are arguments he or she might make -- this is likely to come down to a battle between the legislative and executive branches, and likely will result in another subpoena, another contempt proceeding and then more litigation in the courts that could go on for years."
Not to put too fine a point on it, this is blatant obstruction of Congress. And the fact that the courts will quite likely do the right thing in the end doesn't make it any less illegal or fucked up.
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