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Covering Whistleblower-Gate
[Show Intro]
Thomas: Hello and welcome to – don’t adjust that dial! Don’t adjust that dial anybody!
Andrew: [Laughs]
Thomas: The podcast-
Andrew: The podcast dial, yeah!
Thomas: Yes, don’t adjust it because it’s Thomas, it’s Andrew, it’s Opening Arguments! It’s episode – I don’t know – 316 and a half, maybe?
Andrew: 316 and a half, baby! We’ve got to cover “Whistleblower-gate” [Laughs]
Thomas: Oooh. Yeah, Yodel Mountain, Whistleblower Edition. It’s a duet, actually, between a yodeler and a whistler … Whistleblower.
Andrew: [Laughs] Could you imagine being forced to listen to a duet between a yodel and a whistler? Like-
Thomas: I would say Brian should [Laughs]
Andrew: [Laughs] Throw in-
Thomas: Brian should do that but we’re trying to do this one live so we can release it right away ‘cuz it’s such breaking news.
Andrew: Yeah, yup!
Thomas: But, uh, Brian! If you’re sitting at home listening to this combine a yodeler with a whistle and it’ll be pleasant, everybody’ll love it!
Andrew: Oh god, yeah, throw in a vuvuzela while we’re at it!
Thomas: Oh god yeah I quit!
Andrew: We can reduce our listenership to zero, right now!
Thomas: [Laughs] Reduce our hosts to zero!
Andrew: Alright! [Laughs]
Rudy Guiliani Testimony
Thomas: So, umm, I don’t know why we’re doin’ this because I think Rudy Giuliani cleared it all up, [Laughs] as usual!
But, no, it seems as though there’s some breaking news. I mean, we touched on this, the whistleblower, but right after we recorded that yesterday more stuff is coming out, still not everything, we still don’t have the Complaint, is that correct? We still don’t know precisely what it is?
Andrew: Correct.
Thomas: Okay.
Andrew: Yeah, because the law – well, we’ll get into it.
Thomas: We’ll get into it! But as it stands right now, there’re strongly suggestive rumors that this involves Ukraine so we’re gonna go with that, but of course Andrew can give us the legal breakdown and tell us how big a deal this is. Well? What’ve you got for us?
Andrew: Yeah, so as I’m trying to figure out what’s going on – Look, I want to continue to emphasize, we have no specific knowledge [Laughing] better than Rudy Giuliani, right? [Laughs] Who, I think-
Thomas: Well, I feel like on some things, yeah. [Laughs]
Andrew: Well, no, no, I’m not saying in general!
Thomas: I know how to work a TV remote.
Andrew: Right? [Laughing] Yeah.
Thomas: [Laughs]
Andrew: Who would, to me, appear to confess on national television that the President, having been elected in 2016 by asking hostile foreign powers to dig up dirt on his political enemies, has continued to do that.
Thomas: Wow.
Andrew: Yeah, that’s bad and that’s not even the story. So as I’m trying to figure out what this story is about I realize that the news coverage is alighting over really the crucial details of the law and that’s a perfect spot for Opening Arguments to-
Thomas: Absolutely, that’s where you come in!
Andrew: -to jump in, and fill in.
Thomas: I love it!
The Intelligence Community Whistleblower Protection Act of 1998
Andrew: Yeah! So, here’s what we have. Okay? This case involves The Intelligence Community Whistleblower Protection Act of 1988 – of 1998, sorry.
Thomas: Jeez, sad it took that long to protect whistleblowers, but okay.
Andrew: Well, it’s worse than that. This is called “The Intelligence Community Whistleblower Protection Act of 1998”-
Thomas: [Laughs]
Andrew: It does not protect whistleblowers-
Thomas: Oh, okay.
Andrew: -in the intelligence community! [Laughing] It was passed in 1998, but it didn’t become law until 1999, so literally this is like the Holy Roman Empire of laws. It is not holy, it is not Roman, it is not an empire.
Thomas: [Laughs]
Andrew: The ICWPA can be found at 5 U.S.C. § 2302, it’s found all over the place – shockingly, I know our listeners really don’t care, but it took me over an hour just to find the U.S.C. citation-
Thomas: Huh.
Andrew: -for this particular act, because this act was passed as part of the overall Intelligence Community Budget Act of 1998.
Thomas: Oooh.
Andrew: So it’s one of these that has, like, 70 different provisions in it.
Thomas: Ah. Is it funding, like, staplers and stuff? And like-
Andrew: Yeah!
Thomas: [Laughs] Whatever nonsense-
Andrew: No, seriously!
Thomas: -oh also we’ll pretend we’re protecting whistleblowers while we’re funding office expenses.
Andrew: Yes. So here’s the act, okay.
It prohibits an employer who has authority to take, direct others to take, recommend, or approve any personnel action from taking, or failing to take, or threatening to take, or fail to take a personnel action with respect to any employee or applicant for employment as a result of particular disclosures.
Thomas: Hmm.
Andrew: What that means is, disclosing employees are protected from reprisal or prohibited personnel practices – that is being fired, failing to promote, failing to hire, all of that – if their disclosures fit within the guidelines of the statute.
Protected Disclosures
What are those protected disclosures? Subsection (b)(8)(A) [Laughs] bars prohibited personnel actions or reprisal against employees or applicants who disclose information that they reasonably believed to be a violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. Okay, so that’s a narrow class of whistleblowing, but it sounds like standard whistleblower protection stuff.
Thomas: Right.
Andrew: However, those disclosures are subject to certain limitations. First, they can’t be specifically prohibited by law.
Thomas: Huh.
Andrew: Now that sounds like, well, okay, you can’t break the law, but remember we’re talking about in the intelligence community.
Thomas: The NSA.
Andrew: Right, yeah.
Thomas: So everything’ll be classified which means you can’t break the law-
Andrew: Disclosing classified information is breaking the law, that’s exactly right. It gets worse! Second, the disclosures cannot be specifically required by executive order to be kept secret for national defense or foreign affairs purposes.
Thomas: Wow!
Andrew: That’s pretty straightforward, right?
Thomas: Yeah.
Andrew: So even if an intelligence agency hasn’t declared something an executive order, declared something national security, the President can just executive order it. Can be like “nope! Can’t disclose that!” and now you’re outside the protection of a [Teeth clenched] whistleblower statute which is designed to protect you!
Thomas: This is a [Laughs] yeah, this is a useless whistleblower statute.
Andrew: This is – I will cut ahead to the chase – this is such a useless statute that there are, as far as I can tell, only two cases that analyze it in any way whatsoever. I’m gonna talk about those two cases.
Thomas: [Crosstalk] would say, this is as useless as a screen door on a battleship
Andrew: [Laughing] Exactly right, yeah!
Thomas: [Laughs]
Andrew: There are only five cases that cite it, and the other three cases cite it of, like, “well, you know, you could have had the protections of the ICWPA”
Thomas: Right.
Andrew: You know, it’s just – this is a nothing-burger of a statute.
So, let’s keep going. Then, subject to those limitations, subsection (a) provides protection for whistleblowers regardless of the recipient for the disclosure allowing them to make protected disclosures to persons outside the agency such as members of the press.
Subsection (b) says that an employee must make the disclosure to the Special Counsel, the Inspector General of his or her agency, or another employee designated by the head of the agency to receive such disclosures.
Thomas: ‘Kay.
What Happened Here?
Andrew: That’s the provision that applies here.
Thomas: And that sounds like that’s what happened though, right?
Andrew: Yes, yes that’s right.
Thomas: Okay.
Andrew: So I just wanted to differentiate because the first is a general whistleblower provision.
Thomas: Mm-hmm.
Andrew: It’s toothless because of the law… thing [Laughs] “Law thing,” thanks Brian that’s gonna go on the blackmail file!
Thomas: Don’t worry, Brian won’t ever hear this, this is just goin’ straight to the public.
Andrew: [Laughs]
Thomas: Nobody tell him.
Andrew: Yeah, I forgot, he doesn’t listen to the show, yeah!
Thomas: [Laughs]
Andrew: No, but because of the “specifically prohibited by law” proviso.
The second is the procedure that was followed here, but as you’ll see this is not a general whistleblower protection provision. It says – so you’ve gotta make the disclosure to the Special Counsel of the Inspector General, which happened.
Additionally the employee or applicant must reasonably believe that the information evidences (quote) “a violation of any law, rule, or regulation or a gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
Due to the narrow subset of individuals to whom information can be disclosed under subsection (b), such disclosures are not subject to the limitations found in the previous one.
In other words, there are two whistleblower paths here. One lets you go to the press, that’s subsection (a), subject to the whole-
Thomas: You take the blue whistle, yeah.
Andrew: [Laughing] Right? Yeah.
Thomas: Yeah.
Andrew: The subsection (b) is more secure, but you can’t go to the press.
Thomas: Right.
Andrew: You have to go the Inspector General of the intelligence community.
Additional Whistleblower Protection Efforts
A tiny sidebar, there was an additional effort made to protect whistleblowers in the intelligence community – and by the way, this is specific to the intelligence community. And, again, this is an area where even Democratic Presidents, even those of us on the left of the aisle, have … trouble.
Thomas: Hmm.
Check of Powers
Andrew: Because what we are trying to balance is, we are trying to balance the need to check against abuses of power by the government and the fact that national security is the kind of thing that people who abuse their power tend to claim, right?
Thomas: Yeah.
Andrew: We know that throughout history, right?
The Pentagon Papers case proves that. It evidences, it’s an illustration of that.
On the other hand I don’t want to be saying that intelligence classifications are not really, really important, particularly in modern society where we know that one of the techniques that Al-Qaeda uses, or used I should say, but one of the techniques that terrorist organizations use ‘cuz it’s super cheap is brute force computing power. So in other words you take leaked documents, you feed them into a computer and you sort of cross reference the available information and you can use that to uncover connections that can reveal things like troop movements. The classic – the kind of national security that nobody, that Dennis Kucinich would be like, “well alright, we’ve gotta keep that confidential.”
So, look, it is really a potentially sensitive area, here. I don’t want American soldiers to get killed. That’s really, really important. As a result, even people who are pro-transparency tend not to know what to do when we’re talking about the intelligence community.
Presidential Policy Directive 19
The last effort to protect the intelligence community, whistleblowers in the intelligence community, was something [Laughing] and I just had to include this ‘cuz it was called “Presidential Policy Directive 19”
Thomas: [Chuckles]
Andrew: Doesn’t that sound kind of like Star Trekky?
Thomas: Yeah.
Andrew: You know, [Impersonation] according to Directive 19 the Ferengi are going to mobilize their battle stations!
Thomas: [Laughs] Directive 18 was peace with the Klingons, Directive 19, whistleblowing I think.
Andrew: [Laughs] Right! Directive 19 is only about waste, fraud, and abuse. It is just about cost overruns, people who are, you know, stealing money, up-charging various intelligence agencies. You know, $50,000 toilet seats and the like.
Thomas: Well and we’ve still learned, you know, when it came to all that Pentagon waste they were still able to hide that pretty effectively for a very long time. There was that report that there’s just millions and millions and millions of dollars and-
Andrew: Yup.
Thomas: -they deleted the data. So whatever this is is not fully effective. [Laughs]
Andrew: Right. As you point out, that has been the overwhelming incentive behind these kinds of laws, and I think it’s just worth explaining that as we dive into the law. These laws, by and large, were not meant to apply to Julian Assange, to Wikileaks, to this kind of particular situation.
Thomas: Hmm.
Andrew: They were meant to incentivize government employees, bureaucrats, who see something weird and are like, “man, should we really be paying millions of dollars for staplers? I’m gonna go tell somebody.” The idea was, we want to incentivize that as a check against the massive corruption in the defense industrial complex.
It’s important to keep that in the background because while these sorts of questions come under those statutes, this really isn’t what they were meant to cover.
Has This Whistleblower Faced Repercussions?
Thomas: Hmm. But I’ve gotta ask, stepping back from all this.
Andrew: Mm-hmm?
Thomas: All this is about protecting a whistleblower but are we even that far? Because for all we know – do we know that the whistleblower was fired or anything? It just sounds like there was a Complaint, it went somewhat up the chain to some sort of Inspector General – I’m thinking of an Inspector Gadget type?
Andrew: [Laughs]
Thomas: I dunno if there’s any similarity there, but then they did the extendy-arm thing to try to give it to somebody else but it was – or Schiff was trying to get them to testify? Do we care about the whistleblower? I guess my question is, all this is about protecting the whistleblower but are we even at that phase of things?
Andrew: So we’re not there yet but I think we’re going to get there.
Thomas: Okay.
Andrew: It’s a really, really good question. So you accurately summarized where we are, which is whistleblower working for an intelligence community agency. We do not know which one. Very likely the – well… I was gonna say very likely the CIA but we don’t know, so I’m not going to speculate. Could be NSA. Any intelligence community agency.
They wanna bring something to the attention of congress, to the House of Representatives Committee on Intelligence. They write up their Complaint and they give it to the Intelligence Community Inspector General. That did happen here. It must specifically state that it is an ICWPA Complaint, Intelligence Community Whistleblower Protection Act Complaint. It did here.
The Intelligence Community Inspector General then has 14 days under the statute to decide if that Complaint pertains to a (quote) “urgent concern.” I just read you-
Thomas: Yeah.
Andrew: That’s the subsection (b). That happened here.
Trump Appointee Reviewed Complaint
Thomas: And that’s – can I pause on that for a sec? ‘Cuz that was one thing I wanted to run by you, this strikes me – okay, look, if you tried to repeat this story as “hey, somebody thought Trump was doing something reckless” or whatever the language you provided, you know, detrimental, bad leadership, it’s like, “okay, what else is new? Everybody knows that.”
But this is a Complaint, from my understanding (correct me if I’m wrong), Complaint that came from someone and then went up to Inspector Gadget and then Inspector Gadget, who is likely a Republican Inspector Gadget ‘cuz it’s a Trump appointee or something, or somebody who is not gonna be part of the deep state [Laughs] conspiracy against Trump. This is likely a Trump-friendly person who found it so serious that they took it seriously and judged that this is a legitimate thing.
Inspector Gadget sidebar
Andrew: Exactly right. So A, I will point out, when I type in “Inspector General” [Laughing] into Google mine defaults to Inspector Gadget as well!
Thomas: Good!
Andrew: So I thought that might have been idiosyncratic to my computer, but-
Thomas: It’s no just us, it’s everybody!
Andrew: Good to know. Who is Inspector Gadget here? I thought that was a great question, let me go down that – it’s not even really a rabbit trail, it’s just an avenue. There are multiple Inspectors General in the federal government.
Thomas: [Laughing] Inspectors Gadget! [Laughs]
Andrew: [Laughs] Inspectors Gadget, that is the proper pluralization!
Creation of the Intelligence Community Inspector General
The Intelligence Community Inspector General is created by 50 U.S.C. § 3033, and that is the Inspector General Act of 1978, and it created a whole bunch of different Inspectors General for various federal agencies.
Again, remember that the primary purpose of these is to – this is the late 1970s, right? The idea was to oversee and detect waste, fraud, and abuse. So, the person who is presently in office is a guy named Michael K. Atkinson. He assumed that office on May 17, 2018. He is 100% a Trump appointee.
Thomas: And not an early one who thought better of it later!
Andrew: Yeah.
Thomas: He’s assuming office in 2018, you said, right?
Andrew: Yes, correct. Now, look, he is – everything I can tell – this guy’s used-
Thomas: A career intelligence person kind of thing?
Andrew: Yeah. I mean, these guys used to hit my “they’re safe” radar, but then I got burned on Bill Barr, so, you know [Laughs] I don’t know.
But, look, here was somebody who graduated from law school, ’91, so he’s in his 50s. He was a partner at Winston & Strawn, and that’s a Convington & Burling type firm. He then worked at the DOJ for 15 years, he was a trial attorney in the fraud division, he was an assistant U.S. Attorney, worked in fraud and public corruption, then he went to the DOJ’s national security division as the Acting Deputy Assistant Attorney General for national asset protection and as Senior Counsel to the Assistant Attorney General. Again, career guy, rooting out fraud and corruption, which is by and large what this is supposed to do.
Timeline of Whistleblower Complaint
August 12 – Atkinson Receives Complaint
The Complaint – and here’s where we get into the details that we do know. Atkinson gets this Complaint on August 12, 2019. We know that from a public letter released by Adam Schiff (and we’re gonna go into those letters).
Under the statute, he has 14 days to then say “I’m reviewing this Complaint, I’m gonna do an independent review and determine whether this is a matter of urgent concern.” Atkinson said “Yup!”
Thomas: Hmm.
Andrew: “This is definitely a matter of urgent concern.”
Now, again, remember this is still – because this is an ICWPA Complaint it’s confidential. The only people that have seen this are the person who filed it, the Inspector General of the Intelligence Community, and the person to whom he transmitted it, which is the Acting Director of National Intelligence, Joseph Maguire.
Sidebar – Debunking Conspiracy Theory on Firing of Dan Coats
Time for another little sidebar. [Chuckles]
Thomas: [Laughs]
Andrew: Because I’ve seen a conspiracy theory on this, and it’s super-duper tempting but I don’t think it’s true. Acting Director Maguire (and I keep thinking of Tobey Maguire who is Spiderman).
Thomas: Ooh, a crossover!
Andrew: [Laughs]
Thomas: We have an Inspector Gadget Spiderman Universe! Okay!
Andrew: [Laughs] Yeah, exactly! The reason Trump keeps operating with Acting Directors, ‘cuz he doesn’t have to put crazy people up before the Senate for advise and consent and we know that the entire federal bureaucracy that pretty much all of the executive branch agencies are staffed by whoever’s left standing now.
The outgoing Director of National Intelligence was Dan Coats. Dan Coats is an Indiana Senator, Republican. Not someone with whom we are likely to agree on a whole lot of things, but somebody who – longstanding, old guard anti-Trump Republican. Anti-Trump is the wrong way of saying – he was not anti-Trump in the way that a handful of people who now no longer exist were vocally anti-Trump, but he’s not a pro-Trumper, he’s not a Jeff Sessions. Coats, everything I can tell, is a longstanding, well respected, well-liked guy across the aisle. Coats was fired on August 15 and replaced with Tobey Maguire.
Thomas: [Chuckles]
Andrew: Joseph Maguire [Laughs]. And so a lot of people are like “Oooh, did that – was he fired after the Complaint came in?” Not true. I looked back, Trump first [Sighs] tweeted out because of course he did ‘cuz our President runs the Whitehouse from Twitter. But he first tweeted out that Dan Coats would resign on July 28th of 2019.
Thomas: Okay.
Andrew: So two weeks before this Complaint was made. So I’ve seen some people saying this Complaint was so scary that that’s why Trump fired Coats and replaced him. No-
Thomas: Not true, it sounds like.
Andrew: That’s not, that is not true.
Thomas: Okay.
Joseph Maguire Background
Andrew: And again, I don’t know anything about Maguire, I don’t think anybody knows anything about Maguire. He’s a Vice Admiral, I can’t say that he’s not qualified to be Acting Director of National Intelligence, he’s a Vice Admiral. He had, like, hundreds of people reporting to him, he’s made a career out of intelligence, but it’s all been within the military. He is a total cipher outside the military.
Thomas: Oh.
Andrew: We just don’t know. He was the Director of the National Counterterrorism Center, he was a national security fellow at Harvard.
Thomas: So, I mean, this isn’t one of Jared’s friends?
Andrew: Yeah.
Thomas: This is a real career guy, but we don’t know.
Andrew: Right, but we just don’t know.
We literally don’t know anything about him at all other than he has received this Complaint passed up the line from the ICIG, from Inspector Gadget, and he sat on it.
Thomas: Hmm.
Andrew: Now we have four pieces of correspondence here.
Thomas: Can I ask, and I’ll pause.
Andrew: Yes.
Time Limit for Maguire to Send Complaint to Congress
Thomas: Now I know there was some time limit, the 14 days for Inspector Gadget, is there anything that applies to him? Do we know? Does he have a time limit? When you say “sat on it,” were you supposed to do something?
Andrew: Oh, oh! Excellent question. Indeed he does!
Thomas: Uh-huh!
Andrew: Or I should say, indeed he did.
Thomas: Oh, okay [Laughs]
Andrew: That time limit is 50 U.S.C. § 3033(k)(5)(A) and that says “upon receipt of a transmittal from the Inspector General the Director shall–
Thomas: Mm-hmm.
Andrew: And again, shall is the legal word meaning you have to do it, you don’t get to do it whether you decide or not.
“Within 7 calendar days of such receipt, forward such transmittal to the Congressional Intelligence Committees together with any comments the Director considers appropriate.” (End of quote.) He. Has. Not. Done. That. He has plainly violated the law.
Thomas: Oh, wow!
Andrew: That’s something that people – again, ‘cuz we’re in the age of Trump and now – I just don’t get this. I understand that Donald Trump doesn’t care when he violates the law, and his view is “well, what are the consequences gonna be?” But our media reporting should care. Members of Congress should care. He’s violated the law!
Now, there is a question about what the penalty is, if there is any appropriate remedy, and part of that is because, again, this particular provision, the ICWPA, it was never meant to cover this sort of circumstance. It’s the only thing it can, but it was meant to cover confidential reports of $100 hammers and not the [Teeth clenched] the President going to Ukraine, allegedly or, you know, whatever, to get more political dirt on his opponents.
Sidebar on Joe Biden
By the way, as a sidebar, I don’t think you need to go to Ukraine to get dirt on [Laughs] on Joe Biden!
Thomas: On sleepy Joe? Yeah.
Andrew: Seriously, just show up in the Opening Arguments community!
Thomas: Just platform him for a debate, really.
Andrew: Right, right.
But anyway – this is without a doubt a violation of a mandatory statute that says “shall.” Didn’t do that.
September 10 Letter
And that, by the way, is what the September 10 letter from Adam Schiff to Tobey Maguire says, it says “umm … you have a Complaint, it was forwarded to you by the Inspector General, you had 7 days to turn it over to us. 7 days was a long time ago, dude, and you haven’t done that!”
Thomas: [Impersonation] You betrayed the law! Yeah, essentially, he betrayed the law.
Andrew: [Impersonation] He betrayed the law! [Laughs]
Thomas: [Impersonation] Laaaaw!
Andrew: [Laughs]
Thomas: I think that’s the exact exchange that happened! [Impersonation] “You betrayed the law!” and then the guy didn’t care and then now we have to write him a sternly worded crunch wrap or something.
Andrew: To megacity one. [Laughs] Oh man!
Thomas: [Laughs] Too many Law’d Awful References, yeah.
Andrew: Yeah, if you’re just a regular listener, you’re missing out on all of this.
Thomas: Go check it out! Patreon.com/law.
Andrew: Yeah! Alright. Look, this is in fact – the September 10 letter – is a sternly worded letter from Adam Schiff. It’s sterner than most sternliness.
Thomas: Yeah!
Andrew: It ends with “the statutorily protected right of the intelligence community employees to make disclosures to Congress is sacrosanct and must remain insulated from politicization. The Committee will take all steps necessary to ensure this right is upheld. I look forward to receiving the Complaint in full immediately along with any comments you consider appropriate.”
Thomas: So he’s trying to give him the, like, just do the thing and then we don’t have to try to figure out how the law is supposed to punish you.
September 13 Response Letter
Andrew: Yup. Now we have – this just came out this morning – we have – ‘cuz yesterday when we recorded we had Schiff’s letters, we did not have the response-
Thomas: Ooh.
Andrew: -from the Acting Director of National Intelligence. We now have those!
Or, I should say, we have it from his lawyer, Jason Klitenic, who is General Counsel for the Office of Director of National Intelligence. That should tell you something right off the bat, when you have your lawyer write the letter back instead of you writing the letter back, that indicates exactly what you would think it would indicate. Yeah, you’ve accused me of breakin’ the law, and here’s my lawyer to say what our view of the law is.
Here’s what their view of the law is. This is the September 13, so three days later, they write back and say “The Director of National Intelligence believes strongly in the role of the Inspector General and in the statutory provisions that encourage federal employees and government contractors to report truthful allegations of wrongdoing.
The DNI also takes seriously his obligation to protect lawful whistleblowers from retaliation. Under the Intelligence Community Whistleblowers Protection Act congress enacted a framework to report matters of urgent concern within the intelligence community to congress that protects congress’ legitimate oversight responsibilities as well as the Constitutional authority of the President to determine how, when, and under what circumstances classified or privileged information may be reported to Congress.”
Citation to Office of legal council memorandum
Then there’s a citation to an Office of Legal Council memorandum. We’ve seen this trick before. Remember, Office of Legal Council memoranda are written by and at the bequest of the President. They are not law.
Thomas: Hmm.
Andrew: They are the views of the President’s handpicked Office of Legal Council as to what they think the law is. So keep that in your pocket.
Committee Disclosure confidentiality
Thomas: So he’s saying, “would love to help you, would love to do what the law says I’m supposed to do, but we don’t wanna release classified information” even to Congress, by the way, this is not to the public, right? This is even just to Congress?
Andrew: Correct, this is only to Congress.
Thomas: In a committee, could even be totally confidential?
Andrew: Sealed, absolutely. 100% sealed, yup.
Thomas: So this is – what level of BS is this?
Andrew: This is a high level of BS.
Thomas: Okay.
Complaint Review by Department of Justice
Andrew: I’m gonna share some with you.
“In this instance the Inspector General transmitted a Complaint that he viewed as an urgent concern and we reviewed that report immediately upon receipt. Because there were serious questions about whether the Complaint met the statutory definition of an urgent concern we consulted with the Department of Justice” by the way, not part of the process at all in any way.
Thomas: Wow.
Andrew: That’s Bill Barr. “Concerning the appropriate way to handle the Complaint.” That’s not hard to read between the lines. “We also [Laughing] included the Inspector General in those consultations to make sure he had the opportunity to provide those views.” So then it is, look, we decided that this Complaint did not rise to the level of an urgent concern.
Thomas: Yeah.
Andrew: Because “urgent concern” – this is why I gave you all that background on the funding stuff – involves the reporting of a serious allegation involving classified information relating to (quote) “the funding administration or operation of an intelligence activity within the responsibility and authority of the DNI (Director of National Intelligence). This Complaint, however,” and this is the closest we’re going to get to them describing the Complaint so it’s important. I wanna read this word-for-word and slow down.
Thomas: Mm-hmm.
Hint to Content of Complaint
Andrew: “This Complaint, however, concerned conduct by someone outside the intelligence community” largely believed to be the President.
Thomas: The President, right.
Andrew: “and did not relate to (quote) ‘any intelligence activity within the responsibility and authority of the DNI’ (end of quote).” That’s almost certainly true! Right? [Laughs]
Thomas: Yeah.
Andrew: The allegation here is the President asked Ukraine to dig up dirt on Joe Biden. That is definitely not within the statutory responsibility-
Thomas: Yeah.
Andrew: -and authority of the DNI. Um … this is not a permissible, defensible, sensible, coherent, English reading of the statute. The statute does not say that the Director of National Intelligence gets to determine whether this is a matter of urgent concern.
It says he gets to add his comments after the Inspector General has determined that this is a matter of urgent concern. The next – and I’m not gonna read the next section because it is a garbage monster agglomeration of trying to parse out a very, very plainly worded statute and saying “no we don’t have to.”
It says “when a Complaint does not state an urgent concern the statute does not require the DNI to transmit it to the Intelligence Committees because the Complaint is not one (quote) ‘under subparagraph (b)’” that of course begs the question whether the Complaint states an urgent concern is a matter for the ICIG and not the Acting Director of National Intelligence to determine.
So, September 13 the lawyer for the Acting Director Joseph Maguire writes back to Adam Schiff and is like, “yeah, we don’t think that this is a serious thing so you don’t get it.”
How the Law Ought to Work
Now keep in mind, I’ve said it’s not a tenable reading of the statute. That’s certainly true. Keep in mind also that this is not remotely consistent with the way the law ought to work.
I realize there are a great many that don’t care about what the law, what the intent of the law is and how the law ought to work, but you can’t have a whistleblowing procedure that is designed – and subsection (b) is designed only to go to Congress. That’s why I went through that whole long thing about the difference between subsection (a) where you can go to the press and subsection (b) where you can’t.
You can’t have a whistleblowing procedure that gets you to Congress and then say “oh, yeah, but I can’ decide it just doesn’t go anywhere.” An executive branch employee, potentially the subject of the Complaint. Again, not the subject here, I wanna be 100% clear.
Thomas: Right.
Andrew: There are no allegations against Maguire and I don’t think there would be. I wanted to – we went through, there’s no reason to believe he’s anything other than a lifelong military guy, career committed public servant.
However, the construction – I’m using it as an example because if you had a whistleblowing Complaint about the Director of National Intelligence it would follow this same procedure. You would say, “hey, the Director of National Intelligence just bought a million dollar desk and a hundred-million dollar Picasso to hang behind it in his office.” That would be 100% within the intent of this statute. You’re reporting gross financial mismanagement at an executive branch in the intelligence community. You’d file it with the Inspector General of the Intelligence Community, he’d have to file it on to the Director of National Intelligence who would then presumably lard it up with a whole bunch of comments, but the statute says “and then you’ve got to forward it to Congress.”
Thomas: You’d still have to … yeah.
Andrew: It would make no sense to say the Director could squelch hiss own complaint but this reading permits that.
Thomas: It’s almost like they’re full of it.
September 13 Schiff Response
Andrew: It, oh yeah! Shocker!
Now, September 13th Adam Schiff gets the letter back from Maguire’s lawyer.
Later that day [Laughs] he writes another letter and says “Dear Acting Director Maguire, your stuff is late, it was due on September 2nd, it’s more than 10 days later, on August 26th the ICIG forwarded you disclosure and accompanying materials, triggered a mandatory 7-day period. In violation, and in stark break with the unbroken practice of previous Directors of National Intelligence, you have refused to transmit to the Committee the whistleblower disclosure, even after our formal request on September 10th.
So far as this Committee is aware this marks the first time that a Director of National Intelligence has ever sought to overrule the ICIG and conceal from Congress a whistleblower Complaint. In this case, one that the ICIG has already determined to be a credible urgent concern.
You have further refused to provide the whistleblower with the required discretion through the ICIG on how to contact the Committee in a secure matter. As Acting Director of National Intelligence you have neither the legal authority nor the discretion to overrule his determination, you do not possess the authority to withhold from the Committee a whistleblower disclosure within the Intelligence Committee that is intended for Congress.”
Now we get into the bold language. “The Committee can only conclude that serious misconduct at issue involves the President of the United States and/or other senior Whitehouse or administration officials. This raises grave concerns that your office, together with the DOJ” and, again, remember when I first read this I was like “how did he know it’s the DOJ?” They know it’s the DOJ because the stupid lawyer said [Impersonation] “We met with Bill Barr.” Yeah, [Laughing] there was no reason for him to say that. The DOJ should have played no role in this.
Thomas: Yeah.
Andrew: But that’s what tipped them off.
Oddity in Who Sees Confidential Documents
Thomas: Also, pausing on that, I was gonna say doesn’t it seem a little strange that if the whole ostensible argument is “well, we can’t release this to Congress it’s very, very secret! We are going to show it to someone for no reason that should be involved whatsoever”-
Andrew: [Laughs] Right!
Thomas: -“but apart from that we can’t give it to the” – what is Schiff? The chair of the National Intelligence Committee? Is that what it is?
Andrew: Yeah, the House Intelligence Committee. Yup.
Thomas: The House Intelligence Committee? Like, “we can’t show it to him, confidentially, but we can show it to Bill Barr who shouldn’t be involved anyway.” Do I have that right?
Andrew: Exactly.
Thomas: Okay.
Andrew: You have that exactly 100% correct.
So this sternly worded letter then says, “Absent compliance by Tuesday, September 17th, the Committee will require you to appear for a public hearing on Thursday, September 19th to account for this decision.” You may know that-
Thomas: Well that didn’t happen.
Andrew: -Thursday, September 19th, yeah, has come and gone! Did not get the letters on Tuesday, did not show up for hearing on Thursday, what we got back was another letter.
Klitenic’s September 17, 2019 Response Letter
So let’s take a little trip through Jason Klitenic’s General Counsel for the Office of the Director of National Intelligence, let’s take a page through his letter.
He says, “Dear Chairman Schiff, I write in response to your September 13th letter and subpoena. As you know, [Laughing] before you sent that letter I had written to you to explain how the DNI handled a recent Complaint.” That was the September 13th letter we talked about. Then there’s a long thing about how he’s an old Vice Admiral, he’s worked for national security for four decades, blah blah blah.” [Coughs]
Then it says, “We need to correct the record. We have complied with the law according to our September 13 letter.”
It raises no additional arguments with respect to that, it just reiterates the “we get to decide if something meets the definition of urgent concern and since we decided it didn’t we didn’t forward it on.” Then it says, “notwithstanding that conclusion as we explained last week, we remain committed to working with the Committee to reach a reasonable accommodation consistent with the established confidentiality interests of the executive branch.”
Executive privilege argument
This sentence will be familiar to you and to all of our listeners because it’s the excuse Trump gives for everything, right? Why can’t Corey Lewandowski, who was never hired, “oh executive privilege.” The assertion of executive privilege here is astonishing, and I think this is – look, there are ways in which it does not necessarily implicate the President, but just like volunteering the “oh we showed this to Bill Barr,” I think this confirms that, if not involving the President it involves senior Whitehouse officials. Because otherwise there’s no argument on executive privilege to invoke.
Thomas: Yeah.
Andrew: So, “consistent with the established confidentiality interests of the executive branch” that’s another own goal. “The Complaint here involves confidential and potentially privileged matters relating to the interests of other stakeholders within the executive branch.”
Thomas: Huh.
Andrew: Again, we don’t know who that is. It is consistent with that being the President, it is consistent with – but this is volunteering additional information we didn’t know before.
“Any decision by the Director of National Intelligence concerning potential accommodations of the request will necessarily require appropriate consultations. While we are seeking to expedite consideration of the request it will not be possible for the Director to complete those consultations by this afternoon, which is less than two business days after we received the subpoena.
We believe it would be premature at this juncture for the Committee to expect for the Director to appear Thursday at a Congressional hearing given the pressing responsibilities to which he is devoted this week he is [Laughing] not available on such short notice. Such a hearing would not be a productive exercise while the Director remains engaged in deliberations over the appropriate response.
We hope to quickly complete consultations to determine whether and to what extend we may be able to accommodate your request. We appreciate your interest and support in this matter and expect to provide a further response to the subpoena as soon as possible.” That’s the end.
Thomas: Can you translate that for us?
Andrew: Yeah.
B.S. Translator
Thomas: Put on your “BS Translator.” That’s a little lawyer-ese dense, I have a hard time-
Andrew: Yeah, yeah. Yeah. That is “you’ve told us to show up pursuant to a subpoena. We’re not going to. Go clownhorn yourself.”
Thomas: [Laughs]
Andrew: “We’re super happy to try and help you out in any way whatsoever that doesn’t involve us-
Thomas: Dong the thing we’re supposed to do?
Andrew: -being remotely disloyal to the President who is probably implicated in this Complaint. And we’re gonna run out the clock as much as possible for as long as possible.”-
Thomas: Because we’ve seen that that works and nobody can be punished for anything really. We’ll just get a bunch of letters, right?
Andrew: [Laughs]
Thomas: Sorry, maybe I’m adding onto it, but…
Andrew: No, that’s right! Look, I think – look. [Sighs]
What Needs to Happen Next?
Thomas: What needs to happen? I mean, are we to that point? Are we there in the conversation? I don’t wanna interrupt the really, really good break down you’re doing, but, like what needs to happen for things to go according to the law here?!
Andrew: So… what needs to happen is Adam Schiff needs to go to the District Court for the District of Columbia and get an order requiring – an injunctive relief requiring Acting Director Joseph Maguire to appear pursuant to the subpoena.
Unlike everybody else, they need to be prepared to play hardball this time. They need to be prepared to have the House Sergeant at Arms arrest Joseph Maguire if he doesn’t show up. You haven’t heard me say that before, but we have moved. You know the way I view the importance of institutions and procedures and everything.
We are dealing with a Whitehouse that isn’t acting in good faith. We are dealing with a Whitehouse that is taking advantage of the fact that Adam Schiff thinks it’s 2007. Adam Schiff does not realize that these lawyers are not playing by – because, look, I get it.
If I got a subpoena that required my client to show up in two days I’d write a letter like this letter that Klitenic wrote back. I would write that letter and go, “come on, you sent the subpoena two days ago and give me some time. There are a couple of things that are important, if you make my guy show up in two days he’s not gonna be able to give you useful information, give me a couple of weeks so that I can figure this out and talk to my client and work with me around his schedule. He’s a busy guy, he’s the Acting Director of National Intelligence. In any sane administration that guy would be super busy.” So, okay. That’s a totally reasonable response if the other side is playing by the rules.
We have every reason to believe that the other side is not playing by the rules. We have every reason to believe that this is a delaying tactic, an obfuscatory tactic, and at some point you’ve gotta draw a line in the sand and say “I’m willing to go to Judge Beryl Howell and say ‘yeah, I get it, in a normal case you’d wanna have accommodations, this isn’t a normal case. They keep sending us nonsense letters that are not supported by the law. Make him show up for his testimony.’” It is not even plausible that requiring to divulge a Complaint that says something about the President is covered by executive privilege. That is a bat-clownhorn crazy-
Thomas: [Laughs]
Ridiculousness of Executive Privilege Claim
Andrew: Right? It’s hard for me not to swear on this episode! I want you to parse – maybe I didn’t do a great job on this. The assertion that a Complaint about the President involves executive privilege is precisely-
Thomas: Yeah.
Andrew: -as ridiculous as me filing an injunction to stop somebody from suing me and saying “well you can’t do that because it would involve”-
Thomas: The rules are you can’t sue me.
Andrew: -attorney-client privilege! Right?
Thomas: [Laughs]
Andrew: It would be like-
Thomas: Attorney-client [Laughs]
Andrew: No, wait! No, no no no! Seriously, it’s the same thing!
Thomas: Yeah.
Andrew: Executive privilege would apply if the whistleblower were talking to the President. Saying stuff you learned about the President is not covered by executive privilege! That’s not covered by anything! It is-
Thomas: Wow.
Andrew: -monstrous and crazy and nuts.
It is rare to me [Laughing] for me to say something that broadly, but this is just – these are folks – this is a continuation… maybe I’m frustrated because I was wrong.
Andrew Was Wrong on Bill Barr
The one thing that is gonna replace “check the stone notes” on my tombstone – not that I’m gonna have a tombstone – but that would be my epitaph is, I really, really thought that Bill Barr would be impeached. I fundamentally believe that, that at its core-
Thomas: Yeah, that was a real Negatron victory on that one.
Andrew: Yeah, well-
Thomas: I mean, I’m not happy about it, but-
Andrew: Right. I’m not happy about any of those victories.
Thomas: [Chuckles]
Andrew: Look, the idea that it’s okay for loyalists to the President to jump in and take authority away from the way in which government is supposed to operate and that Democrats will just sit back and take it. You have to stop sitting back and taking it.
This is a political appointee interfering with a mandatory transmittal to the United States Congress. It violates the law. At minimum – and when I say “go to the Court and get an Order” I’m not talking about arresting Joseph Maguire for violating the statute, I don’t think you can arrest him for that, that would be – we could do another hour on that. It’s not clear that there’s a remedy under the whistleblower statute against what Maguire has done.
Thomas: Hmm.
Andrew: But there damn sure is a remedy when he doesn’t show up in response to a congressional subpoena. You can absolutely get a Court to say “no, not gonna do it anymore, this is pattern and practice of government witnesses thumbing their nose at the law, this is an urgent matter of national concern relating to national security and no we shouldn’t have to wait three weeks while he goes to talk to Trump and gets assurances that he’ll be pardoned, so why not just show up?” No! You shouldn’t do that! Drag him in here right now and if he won’t then he’s a noncooperating witness, then he should be subject to the same penalties-
Thomas: Throw him in the brig!
Andrew: -that you or I or anyone else, that’s right! If I get a subpoena to show up at the House of Representatives and I’m like pfft! [Laughing] Subpoenas! That’s a piece of paper. It is. If I throw away that piece of paper the guys with guns and handcuffs will show up at my door and frog-march me into the House of Representatives and I don’t see why being Donald Trump’s buddy means that-
Thomas: Yeah, let’s do that! Schiff has been great, so maybe he will do that? Schiff, if you’re listening, we’re big fans, do that!
Andrew: Yeah. There is no reason not to. Look, I know why he hasn’t done it. He hasn’t done it because Adam Schiff is like me. He thinks the rule of law counts, he thinks the process works and I get it, buddy! I’ve been there for three years on this show. The other side is taking advantage of that, and if you don’t compel him to show up-
Thomas: Well, yeah. We don’t know what he’s doing, maybe he’s been giving it a minute. Clearly he released these letters and stuff, he’s clearly-
Andrew: Yup!
This Show Won’t Speculate
Thomas: -trying to make something happen. All this is interesting, but so far it’s all about, right now it seems to me, the guy who’s sitting on the Complaint mainly. I know we don’t know exactly what the Complaint is, do you have any thoughts on what level of impeachable behavior that this might be that Trump partook in?
Andrew: [Sighs]
Thomas: Or is it too hard to speculate because we don’t have the details?
Andrew: It’s too hard. It is too hard to speculate.
Thomas: But it’s apparently important enough for this guy to break the law and sit on it, right?
Andrew: Yeah. It is important enough that a civil servant filed a Complaint to a Trump appointee who looked at it and said “Holy clownhorn! Yeah, this is an urgent matter!”
Thomas: Yeah!
Andrew: “I’m gonna forward this over to the Director of National Intelligence.” Yeah. Right? Infer what you want but this is not-
Thomas: It’s gotta be something.
Andrew: This is not the staplers.
Thomas: Yeah, this was something that’s a matter of opinion where it’s like “well, whatever, he’s the President, he gets to do that so it’s fine.” I find it hard to imagine it would have made this much of a ruckus, right?
Andrew: I think … look, I think that’s right, and I think-
Thomas: They would’ve just released and said “ah, whatever, doesn’t matter.”
Andrew: Yeah. Yeah, I think that’s right. And, look, you have – Guliani defenestrating himself on national television.
You have the President saying typical Trump defense stuff, [Impersonation] “well this was filed by a political hack and everybody who’s reviewed it knows that it’s partisan garbage” which is of course Trumpism to the highest degree because [Teeth clenched] nobody’s seen the document, including the President. Well, the President probably has now. But nobody else has seen the document. [Laughs] Nobody else knows who the identity of the whistleblower is, so it’s sort of classic well-poisoning and if we had something other than Pravda circa 1954 in terms of Fox News just repeating press releases from the administration as if it’s facts … I’m sorry. I need to go take my blood pressure medication. I don’t even have blood pressure medication-
Thomas: Well you do now, yeah!
Andrew: -but I need to see a cardiologist and get blood pressure medication-
Thomas: [Laughs] No, this is great!
Andrew: -because this is working out-
Thomas: Stay on that soapbox, Andrew! Stay on it! I like it. I’m converting you to the Negatron dark side. [Laughs] Okay, that was a brilliant explainer, I really feel like I understand this way better. I guess to try to finish up, assuming there’s nothing else that you need us to know,
What Next?
A, is there anything else you need us to know? B, what’s the next action that we’re looking for? We’re looking for what Schiff’s gonan do? What’s the next thing we should keep an eye out for in the news?
Andrew: Yeah, the next thing is to see what the House Intelligence Committee does to require the Acting Director of National Intelligence to appear. It says they’re gonna try and reach an accommodation but, you know, Corey Lewandowski said he was gonna try and reach an accommodation. That can literally mean anything. It’s, again, you don’t wanna draw too many negative inferences, and I tried super hard not to engage in wild speculation in this episode.
You do have to ask yourself, at some point, it’s way easier just to turn over the Complaint. [Chuckles] And the fact that they’re not should cause you to wonder why they’re not. And I realize all the problems of that, you can misuse that, that can lead you to erroneous conclusions, but there’s a reason that’s heuristic and, yeah.
So that’s what comes next, and what everyone should be asking – and it’s a little bit unfair because Adam Schiff, you and I both said, he’s been a good guy, he’s been leading strong on this, on a lot of matters, but the question to Adam Schiff needs to be “okay, you issued a subpoena, this witness didn’t show up, what are you going to do about it and when?” That’s how, if I took – we have journalists who follow the show, I’m gonna also transmit it out to our journalist friends – that’s the question everybody needs to be asking Congressman Schiff. Okay, Maguire didn’t show up for his subpoena, what are you gonna do about it and when?
Thomas: Alright, well there you have it. Andrew thanks so much for taking the time! I know you’ve got a busy weekend ahead of you and it was really awesome that you took the time to do all this research and give us the breakdown because this feels like a pretty big story, right? People aren’t crazy to be pretty alarmed about this, right?
Andrew: Yeah, they are not. Again, in the same way that I continue to believe that Stormy Daniels is a big story, right?
Thomas: Yeah, yeah.
Andrew: That even if the underlying – and this is [Sighs] it’s why I wanted to do this episode, and it’s what I want you to remember. [Sighs] It would not surprise me – look, Rudy Guliani is Rudy Guliani.
Trump Cooking Nothing-Burgers
It would not surprise me if the ultimate request is less egregious than we’ve been led to believe, because that’s been part of the political strategy of this administration. Do something really bad, back channel that it’s really, really, really bad [Laughing] and then when it’s slightly less worse than that be like “pfft, see? Nothing-burger, nothin’ to see here.”
The problem, the impeachable conduct, the breakdown in governance, has already occurred when Bill Barr conspired with Joseph Maguire to obstruct the lawful transmittal of a Complaint from the inspector general to congress. It does not matter what that Complaint says. Don’t be distracted if it turns out that the ultimate Complaint is less salacious than the details that come out now. So I would encourage you to-
Thomas: Fair enough, great point, but that doesn’t mean that they get to do whatever they want in covering it up. It is important to – you’re right to identify that maneuver that’s been happening where they’re able to be incredible unethical and do impeachable stuff in order to cover up stuff, but they’ve increased expectations so high that when the actual thing, when the actual Mueller report, for example, isn’t Mueller getting in front of Congress and doing backflips and saying “this guy’s the most corrupt” so then therefore it’s fine. It’s this weird thing, it really is a reality show thing, where if it doesn’t live up to some insane expectations that we set, or that Trump set kind of sinisterly, then it means “okay, then it’s nothing,” and that’s just not true.
Andrew: Yeah. Yeah, that’s right.
Thomas: Alright, well thanks so much Andrew, thanks for listening, everybody. Hey! Buy tickets to the live show! L.A., October 12th, we’re so excited to see everybody, can’t wait, please pledge on patreon.com/law and we’ll have lots of goodies coming at you. This was a lot of fun and it also – I say “fun” but I really feel like after hearing your breakdown, Andrew, that I finally understand this much better than I was getting from some of these news reports. Not that they’re all bad or anything ,but I really love the way you put it together, so thanks so much for this, and everybody we’ll see you on Tuesday’s show!
Andrew: See you on Tuesday!
[Show Outro]