Breaking Down the Whistleblower Frenzy

(Joshua Roberts/Reuters)
Congress should investigate the whistleblower claim that Trump made a dangerous ‘promise’ to a foreign leader . . . but not because of a statute.

The Democrats’ media narrative of impeachment portrays President Trump and his administration as serial law-breakers who, true to form, obstruct all congressional investigations of wrongdoing. This then becomes the analytical framework for every new controversy. There are at least two fundamental problems with this.

First, our constitutional system is based on friction between competing branches vested with separate but closely related powers. The Framers understood that the two political branches would periodically try to usurp each other’s authorities. Congress often does this by enactments that seek to subject executive power to congressional (or judicial) supervision. Presidential pushback on such laws is not criminal obstruction; it is the Constitution in action.

Second, we’ve become so law-obsessed that we miss the forest for the trees. Often, the least important aspect of a controversy — viz., whether a law has been violated — becomes the dominant consideration. Short shrift is given to the more consequential aspects, such as whether we are being competently governed or whether power is being abused.

These problems are now playing out in the Trump controversy du jour (or should I say de l’heure?): the intelligence community whistleblower.

As this column is written on Friday afternoon, the story is still evolving, with the president tweeting as ever, and the New York Times producing a report by no fewer than eight of its top journalists, joining the seven (and counting) who are working it for the Washington Post, which broke the story.

It stems from — what else? — anonymous leaks attributed to former intelligence officials. Whether they are among the stable of such retirees now on the payroll at anti-Trump cable outlets is not known. While the media purport to be deeply concerned about Trump-administration law-breaking in classified matters, there is negligible interest in whether the intelligence officials leaking to them are flouting the law.

A Promise to Ukraine?
In any event, we learn that an unidentified “whistleblower” has filed a complaint with the intelligence community’s inspector general (IGIC), relating that President Trump had recent interaction with an unidentified foreign leader during which the president made a “promise” which is not further described to us, other than that the whistleblower found it very “troubling.” The inference that President Trump is the subject of the complaint (or at least a subject) derives from the fact that intelligence officials say it involves someone who is “outside the intelligence community,” and that there are issues of “privilege” that justify non-disclosure to Congress. (The president is “outside” the intelligence community in the sense of being over it as chief executive; and, as I discussed in a column earlier this week, presidents have executive privilege, which shields communications with advisers.)

The latest news to break suggests that the communications (there is more than one) relate, at least in part, to Ukraine. The whistleblower complaint is believed to have been filed on August 12. President Trump is known to have spoken by phone with Ukrainian president Volodymyr Zelensky on July 25. Rudy Giuliani, who is Trump’s private lawyer (and who hired me as a prosecutor many years ago), has been open about urging Ukraine to pursue an investigation implicating Democratic presidential hopeful Joe Biden. Specifically, when he was Obama-administration vice president, Biden is rumored to have pressured Ukraine to fire a prosecutor who was conducting a corruption investigation of a natural-gas company. Biden’s son, Hunter, sat on the company’s board, and his law firm was lavishly compensated.

Thus, the theorizing in anti-Trump circles is that an intelligence official privy to details of the July 25 call must have learned that the president made a quid pro quo arrangement with Ukraine, promising some kind of assistance in exchange for movement on an investigation that could politically wound Trump’s potential 2020 opponent. (A CNN interview that became a spirited argument between Giuliani and Chris Cuomo got lots of play on Friday. Meanwhile, to my knowledge, there has not been much congressional interest in examining Obama-administration and Clinton-campaign dealings with Ukraine in 2016, when our government encouraged Kiev to investigate Paul Manafort, and a leak about a claim of lavish cash payments to Manafort resulted in his removal as Trump’s campaign chairman.)

President Trump is pooh-poohing the whistleblower complaint as a fabrication by “Radical Left Democrats and their Fake News Partners, headed up again by Little Adam Schiff.” That last derogatory reference is to the California Democrat and Trump antagonist who chairs the House Intelligence Committee. Conveniently omitted by the president are the facts that (a) the whistleblower has tried to comply with federal law and go through government channels rather than leaking information to the Trump-hostile media; (b) the IGIC to whom the whistleblower made his report is a Trump appointee, namely Michael Atkinson, a career Justice Department prosecutor who got the IGIC gig in 2018; and (c) Atkinson concluded that the whistleblower’s complaint was credible and sufficiently serious to be deemed a matter of “urgent concern.”

‘Urgent Concern’ — Another Confusing Dual-Use Term
This brings us to a common situation that we rarely notice but that often skews public debate. I’ll call it the dual-use term: A word or phrase that has both a common meaning because it is invoked in everyday parlance and a specialized meaning in statutory law — either because Congress has taken the trouble to define it or the courts have authoritatively construed it.

“Urgent concern” is a dual-use term. Such terms confuse things because politicians seamlessly shift from the common to the specialized meaning. Frequently, legal consequences limited to the narrower legal sense of the term are triggered by anything that fits the term’s broad general understanding. To take a notorious example, “collusion” — the subject, ahem, of a certain new book — has both a broad general connotation (concerted activity that can be benign or sinister, or anything in between) and a narrow specialized meaning when invoked in law-enforcement investigations (criminal conspiracy). For years, Chairman Schiff and other Trump critics have intimated that episodes of unremarkable collusion in the broad sense (e.g., negotiating policy or real-estate deals with Russians) are evidence of illegal collusion in the narrow, specialized sense (conspiracy to commit cyberespionage with Russians).

The common meaning of urgent concern is obvious: It could describe anything that raises the specter of imminent harm. But urgent concern is also a specialized term in federal law. Under Section 3033(k)(5)(G) (of Title 50, U.S. Code), an “urgent concern” relates to specified problems involving intelligence activities and classified information that are within the responsibility of the Director of National Intelligence. The DNI is the cabinet official who oversees the so-called community of intelligence agencies. The urgent concerns Section 3033 outlines include, for example, violations or abuses of laws or executive orders, or deficiencies in the funding, administration or operation of an intelligence activity. Section 3033 urgent concerns also include misleading of Congress regarding intelligence activities, and reprisals against whistleblowers who report an urgent concern.

Notice the difference between the common and statutory meaning.

Any executive action that imperils national security, particularly in connection with classified information falling into the hands of a foreign power, could accurately be described as a matter of urgent concern, as that term is commonly understood. Even if there were no Section 3033, and there were no specialized statutory definition of “urgent concern,” it would be entirely appropriate for Congress to inquire into such matters.

On the other hand, if a situation qualifies as one of the narrower sets of “urgent concerns” defined by Section 3033, it triggers the mandatory reporting procedures prescribed in the statute. To wit, if an intelligence official believes a Section 3033 urgent concern has arisen, that official (a whistleblower) may report the matter to the IGIC with an eye toward its transmission to Congress. The IGIC then has two weeks to decide whether a complaint is credible. If the IGIC so finds, the matter must be referred to the DNI, who must notify the congressional intelligence committees within one week.

Section 3033 Does Not Apply to the President
Here, the whistleblower (who is reportedly represented by a lawyer well versed in Section 3033) believed President Trump’s undescribed promise to the unidentified foreign leader qualified as an “urgent concern” under the statute. On August 12, the whistleblower reported the matter to IGIC Atkinson. In what I believe was an error, Atkinson concluded that the complaint did indeed spell out a Section 3033 urgent concern because it was credible and raised a serious issue. (As we’ll see, my quarrel is with the application of the statute to the president; I assume the Trump-appointed IGIC is correct that the complaint is credible and serious.)

Atkinson thus notified Joseph Maguire, the acting DNI. Maguire, however, did not believe the matter met the Section 3033 definition of an urgent concern, because it related to an activity by someone not under the authority of the DNI (inferentially, the president). Consequently, Maguire declined to pass the complaint along to the House and Senate Intelligence Committees.

As noted above, current and former intelligence officials continue to leak like sieves in their years-long campaign against the sitting president. Thus, the existence of the complaint, the report of it to the IGIC, and the acting DNI’s refusal to alert Congress became known to the media and to Chairman Schiff. The chairman is claiming that the Trump administration is violating the law by failing to notify Congress of an urgent concern, as mandated by Section 3033.

In my view, Chairman Schiff’s claim, based on IGIC Atkinson’s interpretation of the statute, is wrong. Section 3033 does not apply to a president’s negotiations with or commitments to foreign powers, or to a president’s sharing of classified information with foreign powers. To repeat, the statute applies to intelligence activities by government officials acting under the authority of the DNI. If I am right, the Trump administration should not be accused of law-breaking for declining to follow Section 3033, even if the whistleblower had an “urgent concern” in the ordinary understanding of that term.

In our system, the conduct of foreign policy is a nigh plenary authority of the chief executive. The only exceptions are explicitly stated in the Constitution (Congress regulates foreign commerce, the Senate must approve treaties, etc.). Congress may not enact statutes that limit the president’s constitutional power to conduct foreign policy; the Constitution may not be amended by statute.

Consistent with this principle, the Justice Department has long adhered to the so-called “clear statement” rule: If the express terms of a statute do not apply its provisions to the president, then the statute is deemed not to apply to the president if its application would conflict with the president’s constitutional powers. Section 3033 does not refer to the president. By its terms, it applies to intelligence-community officials. And, in any event, it may not properly be applied to the president if doing so would hinder the president’s capacious authority to conduct foreign policy.

At least when a Republican is in the White House, progressives are enthralled by laws that, in effect, empower bureaucrats — here, “intelligence professionals”– to second-guess and otherwise check the president’s power to direct the executive branch. That is not our system.

Congress’s Selective Interest in Presidential Abuses of Power
In conducting foreign affairs, the president may make commitments to other foreign leaders (subject to the Constitution’s treaty clause). The president, unlike his subordinates, also has the power to disclose any classified information he chooses to disclose. Like all presidential powers, these may be abused or exercised rashly. When there is a credible allegation that they have been, that should cause all of us urgent concern.

To take one example, President Obama misled Congress and the nation regarding the concessions he made to Iran in connection with the nuclear deal (the Joint Comprehensive Plan of Action). The Obama administration, moreover, structured the arrangement so that commitments to Iran were withheld from Congress — as if what were at stake were understandings strictly between Tehran and the U.N.’s monitor (the International Atomic Energy Agency), somehow of no concern to the United States. Representative Schiff’s skepticism about Iran became muted when a Democratic president cut the deal. Yet these cloak-and-dagger arrangements with a jihadist regime that proclaims itself America’s mortal enemy, in which a U.S. president willfully end-ran the Constitution’s treaty provisions and congressional oversight, were and remain urgent concerns for millions of Americans and most members of Congress.

So how should we evaluate the current controversy?

For starters, we should recognize what is important and what is not. Section 3033 should be the least of our considerations. As argued above, it very likely does not apply, despite the IGIC’s conclusion to the contrary. Its lack of application would not stop the whistleblower from getting the information to Congress (though it may affect whether the whistleblower is protected from reprisals). More to the point, it is irrelevant whether Congress should have been notified within one week of X date as prescribed by statute. Regardless of whether I am right about the statute’s inapplicability, the intelligence committees are now on notice and positioned to examine the matter.

The issue is not Section 3033 and whether the DNI should have alerted Schiff. The issue is whether President Trump has abused his foreign-affairs powers.

On that score, we should withhold judgment until more facts are in. Democrats would have us leap to the conclusion that impeachable offenses have been committed; the president would have us dismiss the matter out of hand as a political contrivance. There are reasons to doubt both of them.

For one thing, there has been a three-year campaign by current and former government officials to undermine the Trump presidency by lawless leaks of politicized intelligence. On the other side of the coin, though, IGIC Michael Atkinson is a Trump appointee. It is he who found the whistleblower’s complaint serious and credible. And the acting DNI, Joseph Maguire, does not appear to be refuting that conclusion; his quibble (which I share) appears to be that Section 3033 urgent concerns are inapposite where presidential foreign-affairs powers are involved. Many of President Trump’s foreign policy moves have been impulsive; it is hardly inconceivable that he could have offered a commitment that was poorly thought through. Giuliani, a key outside adviser to the president, has been pressing the Ukrainians to look into Biden, and, when asked on Friday about whether he discussed Biden in the July call with Ukraine’s president, Trump declined to answer directly, replying, “Someone ought to look into Joe Biden.”

And maybe someone should. The fact that Biden may end up being Trump’s rival in the 2020 election does not immunize him from investigation. If he used his political influence to squeeze a foreign power for his son’s benefit, that should be explored. Of course, Trump should not use the powers of his office solely for the purpose of obtaining campaign ammunition to deploy against a potential foe. But all presidents who seek reelection wield their power in ways designed to improve their chances. If Trump went too far in that regard, we could look with disfavor on that while realizing that he would not be the first president to have done so. And if, alternatively, the president had a good reason for making a reciprocal commitment to Ukraine, that commitment would not become improper just because, collaterally, it happened to help Trump or harm Biden politically.

The president has the power to conduct foreign policy as he sees fit. The Congress has the power to subject that exercise to thorough examination. The clash of these powers is a constant in our form of government. It is politics. For once, let’s find out what happened before we leap to DEFCON 1.

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