Watchdog stays mum on whistleblower report
Complaint said to be on Trump
WASHINGTON — The internal watchdog for U.S. spy agencies declined repeatedly in a briefing Thursday to disclose to lawmakers the content of a whistleblower complaint that is said to involve a discussion between President Donald Trump and a foreign leader, members of Congress said.
During a private session on Capitol Hill, Michael Atkinson, inspector general of the intelligence community, told lawmakers he was unable to confirm or deny
anything about the substance of the complaint, including whether it involved the president, according to committee members.
The complaint, which prompted a standoff between Congress and Trump’s top intelligence official, involves a commitment that Trump made in a communication with another world leader, according to a person familiar with the complaint. The Washington Post first reported the nature of the discussion. The acting director of national intelligence, Joseph Maguire, has refused to give the complaint to Congress, as is generally required by law, the latest in a series of fights over information between the Democratic-led House and the White House.
Few details of the whistleblower complaint are known, including the identity of the world leader.
The Washington Post and The New York Times reported Thursday evening that at least part of the complaint involves Ukraine. The newspapers cited anonymous sources familiar with the matter. The Associated Press has not confirmed the reports.
It is not obvious how a communication between Trump and a foreign leader could meet the legal standards for a whistleblower complaint that the inspector general would deem an “urgent concern.”
Under the law, the complaint has to concern the existence of an intelligence activity that violates the law, rules or regulations, or otherwise amounts to mismanagement, waste, abuse, or a danger to public safety. But a conversation between two foreign leaders is not itself an intelligence activity.
And while Trump may have discussed intelligence activities with the foreign leader, he enjoys broad power as president to declassify intelligence secrets, order the intelligence community to act and otherwise direct the conduct of foreign policy as he sees fit, legal experts said.
Trump regularly speaks with foreign leaders and often takes a freewheeling approach. Some current and former officials said that what an intelligence official took to be a troubling commitment could have been an innocuous comment. But there has long been concern among some in the intelligence agencies that the information they provide to the president is being politicized.
Andrew Bakaj, a former CIA and Pentagon official whose legal practice specializes in whistleblower and security clearance issues, confirmed that he is representing the official who filed the complaint. Bakaj declined to identify his client or to comment.
Trump denied wrongdoing on Thursday.
“Another Fake News story out there — It never ends!” Trump tweeted. “Virtually anytime I speak on the phone to a foreign leader, I understand that there may be many people listening from various U.S. agencies, not to mention those from the other country itself. No problem!”
He asked: “Is anybody dumb enough to believe that I would say something inappropriate with a foreign leader while on such a potentially ‘heavily populated’ call.”
But whatever Trump said was startling enough to prompt the intelligence official to file a formal whistleblower complaint on Aug. 12 to the inspector general for the intelligence agencies. Such a complaint is lodged through a formal process intended to protect the whistleblower from retaliation.
Rep. Adam Schiff, D-Calif., the chairman of the House Intelligence Committee, has been locked in the standoff with Maguire over the complaint for nearly a week. He said Maguire told him that he had been instructed not to give the complaint to Congress, and that the complaint addressed privileged information — meaning the president or people close to him were involved.
Schiff told reporters after the briefing that he still did not know the contents of the complaint and had been unable to get an answer to whether the White House had been involved in suppressing it.
“I don’t think this is a problem of the law,” he said. “I think the law is written very clearly. I think the law is just fine. The problem lies elsewhere. And we’re determined to do everything we can to determine what this urgent concern is, to make sure that the national security is protected and to make sure that this whistleblower is protected.”
Schiff said he would explore potential recourse with the House’s general counsel to try to force the release of the complaint, including potentially suing for it in court.
Schiff has said that none of the previous directors of national intelligence, a position created in 2004, had ever refused to provide a whistleblower complaint to Congress. The House Intelligence Committee issued a subpoena last week to compel Maguire to appear before the panel. He briefly refused but relented Wednesday and is now scheduled to appear before the committee in an open hearing next week.
Sen. Mark Warner of Virginia, the top Democrat on the Senate intelligence panel, said Thursday that he and the committee’s Republican chairman, Sen. Richard Burr of North Carolina, also expected both the inspector general and acting director to brief them early next week and “clear this issue up.”
House Democrats are separately looking into whether Trump lawyer Rudy Giuliani traveled to Ukraine to pressure the government to aid the president’s re-election effort by investigating the activities of potential rival Joe Biden’s son, Hunter, who worked for a Ukrainian gas company.
Among the materials Democrats have sought in that investigation is the transcript of a phone call Trump had with Ukrainian President Volodymyr Zelenskyy on July 25.
As for the whisteblower complaint, Atkinson wrote in letters that Schiff released Thursday that he and Maguire had hit an “impasse” over the acting director’s decision not to provide the complaint to Congress.
While Atkinson wrote that he believed Maguire’s position was in “good faith,” it did not appear to be consistent with past practice. Atkinson said he was told by the legal counsel for the director of national intelligence that the complaint did not meet the definition of an “urgent concern.” He said the Justice Department said it did not fall under the intelligence director’s jurisdiction because it did not involve an intelligence professional.
Atkinson said he disagreed with the Justice Department’s view. The complaint “not only falls under DNI’s jurisdiction,” Atkinson wrote, “but relates to one of the most significant and important of DNI’s responsibilities to the American people.”
The inspector general went on to say he requested authorization to at the very least disclose the “general subject matter” to the committee, but had not been allowed to do so. He said the information was “being kept” from Congress. These decisions, the inspector general said, are affecting his execution of his duties and responsibilities.
Sen. Angus King, an independent from Maine who caucuses with the Democrats, said the law is “very clear” that the whistleblower complaint must be handed over to Congress.
“The Inspector General determines what level of concern it is,” said King, a member of the Senate Intelligence Committee. “Once the determination is made,” he added, the director of national intelligence “has a ministerial responsibility to share that with Congress. It is not discretionary.”
“This is based upon the principle of separation of powers and Congress’ oversight responsibility,” King said.