There is a common question floating around Facebook and Twitter lately, mostly as a rhetorical question expressing frustration at the current impasse, but worth or answering anyway.
“The Trump White House & Department of Justice are involved in, and currently advising the acting Director of National Intelligence, not to share the whistle-blower complaint against Donald Trump. Why did Director of National Intelligence seek their advice in the first place?”
Well, more on that later in this article. There is plenty to cover first.
Some background on the current whistle-blower case
The only defense possible of the current situation where the Trump administration is seeking to block the hand-over of the whistle-blower complaint to the House Intelligence Committee is that this administration is such a Constitutional nightmare that people in positions to act on potential Constitutional violations often do not know where to turn when facing circumstances the framers of the Constitution (and subsequently, lawmakers) never imagined possible.
How long had the acting Director of National Intelligence (Joseph Maguire) been on the job when presented with the complaint, a week? Both the outgoing DNI (Dan Coats) and his top Deputy (Susan Gordon) quit at almost the same time the whistle-blower compliant was filed. Maguire had probably not unpacked the boxes in his office yet and he suddenly had a complaint that, if true, could topple the President of the Unites States and countless other people who may have been involved. This is potentially the most significant presidential scandal in American history, and certainly the most significant one since President Richard Nixon was forced to resign during the Watergate investigation.
Remember the West Wing episode, “Life on Mars?” It was the episode where White House Associate Counsel Joe Quincy (a Republican on his first day in the Bartlet administration) was handed intelligence that Democratic Vice President John Hoynes was having an affair with a reporter and had possibly passed her classified intelligence. It is a credit to his brilliance that Aaron Sorkin wrote a scenario in 2003 that almost perfectly mirrors the scandal which brought down CIA Director David Petraeus a decade later. But in both the real-world Petraeus case and the fictional-world Hoynes case, those who became aware of the potential crimes had superiors they could turn to for advice on how to proceed when the accusations, if true, could topple a powerful man with presidential ambitions.
It is a whole different scenario when the accusation is against the President, and when the accusations are credible claims of influence-selling, and potentially, treason. This is Trump World. Everyone either in the chain of command of running interference between the Director of National Intelligence and the President of the United States, the people who Maguire should have been able to turn to for help, are compromised. The President’s personal attorney (Rudy Giuliani) is at the center of the scandal, and at times during his recent television interview, seemed to be lost somewhere between incoherent and insane. The Attorney General (William Barr) has seemingly replaced Michael Cohen as Trump’s personal fixer and cover-up guy. Barr was the Attorney General who covered-up and/or sought pardons for folks caught in the Iran-Contra scandal during the George H.W. Bush administration in 1992 and 25 years later returned as Attorney General to be the sole decider on killing the Mueller investigation under Trump. Seemingly everyone in Trump’s immediate orbit was not only appointed by Trump to handle some sleazy job for him but are unfailingly loyal to Trump. Perhaps they know they may likely need Trump to pardon them somewhere down the road for the crimes they potentially committed on his behalf?
And remember, Joseph Maguire was not Trump’s first choice for the role of DNI when Dan Coats announced he would resign. Trump first tabbed Texas Congressman John Ratcliffe, a staunch defender and ally of Trump and someone who has frequently made public statements in support of the administration’s unproven claims of anti-Trump bias at the FBI and other intelligence agencies. Trump chose Radcliffe within days of the Congressman attacking former special counsel Robert S. Mueller III during a hearing, an incident Trump likely watched on Fox News, as such clips seem to have an out sized influence on his hiring decisions.
Some current and former members of the intelligence community had described Congressman Ratcliffe as “the least-qualified person ever nominated to oversee the country’s intelligence agencies” and questioned ” whether he would use the position to serve Trump’s political interests.” His appointment failed after he was accused of falsifying accomplishments on his resume and or campaign website, so Maguire stepped in as acting Director. Maguire is a former Navy Vice Admiral who was serving as the Director of the National Counter-terrorism Center when Trump selected him for the Intelligence role.
There are not many specifics available as to how (and why) the White House and Department of Justice became involved in the matter. Did the Inspector General of the Intelligence Committee share the complaint? Did Maguire? Did Coats or Gordon do so? Perhaps one was the whistle-blower but had previously expressed concern directly to Trump and his team? Plenty of pundits may speculate on how the complaint was shared (and potentially, obstructed) , but the only thing known for sure is that the law requires the Director of National Intelligence to hand over to the House Intelligence Committee (within 7 days) any complaint that was both “credible” and of “urgent concern.”
Where is gets into that Constitutional mess described previously is that the counsel for the Office of the Director of National Intelligence (Jason Klitenic) is making several arguments in an effort to keep the complaint from the House Intelligence Committee, arguments seemingly on behalf of Trump and against his own department’s legally defined responsibilities.
Klitenic argues first that the complaint is not of “urgent concern” and thus do not fall under the reporting requirement. But wait, did not the Inspector General of the Intelligence Committee rule that is was “urgent”? Klitenic argues that because the whistle-blower complaint involved alleged improper conduct by someone “outside the Intelligence Community” and given that the complaint did not relate to any “intelligence activity” which falls under the DNI’s purview, the Whistle-blower Act does not require the DNI to forward the complaint to the House Intelligence Committee. And even if the statute were interpreted that the reporting requirement does exist in this case, the fallback position is that the Inspector General of the Intelligence Community lacks the standing to make the determination on whether the complaint is “credible” and “urgent.”
In layman’s terms, the argument is that the Whistle-blower Act does not included an interdepartmental component. In other words, a member of the intelligence community can make a whistle-blower complaint against someone else within that community, and that complaint would be reviewed by the Inspector General of the Intelligence Community (IGIC). Yes, someone in the CIA or FBI could uncover information (perhaps the CIA was monitoring the telephone calls of new Ukrainian President Volodymyr Zelensky? But if the whistle-blower complaint involved say, Secretary of Commerce Wilbur Ross, the complaint would need to be sent to the Inspector General of the Commerce Department, not the Inspector General of the Intelligence Community. Klitenic is effectively arguing both that what the complain is not “urgent” and that even if it were, the IGIC ruling of such is irrelevant as he lacked the standing to review the complaint in the first place.
As the whistle-blower complaint in this case involves the President of the United States, Klitenic’s argument is seemingly that the Inspector General of the United States (Michael E. Horowitz) would be the arbiter to decide on the “credibility” and “urgency” of the complaint. Horowitz is an Obama appointee who led the investigation into, and found fault in the actions of, former FBI Director James Comey and former FBI agent Peter Strzok for their roles in the Hillary Clinton email investigation in 2016. He is also leading the investigation into the FISA surveillance warrants of Trump campaign staffer Carter Page, warrants which led directly to the uncovering of potential criminal conduct of so many Trump associates related to alleged improprieties in the 2016 presidential election. Horowitz has yet to release a finding in that matter.
But Horowitz works for Attorney General William Barr, Trump’s new personal fixer and seemingly the inbox where all investigations of Trump (or his Supreme Court nominees) go to die. What are the odds Horowitz might find the complaint “not credible” or “not urgent” should Barr be the one setting the parameters of the investigation and the standard which much be reached? So far, Michael Horowitz has led an exemplary career and seems an impartial and ethical arbiter. But this is Trump World, where everything and everyone that gets close to Trump is seemingly branded with his logo like they are failed airline or a package of gristly steaks. Seemingly everyone surrenders their honor, dignity, and impartiality when accepting a Trump appointment. Loyalty matters more than legality and there is no point trying to wash away the stench of this corrupt regime once tainted by complicity.
How will this legal wrangling unfold? It is difficult to say.
DENY. DOWNPLAY. DEFLECT. DIVERT. DISCREDIT.
Donald Trump employs five primary tactics when faced with accusations of wrongdoing. These are not limited to his presidency; these have been his primary method of operations his entire adult life.
Think back to when the Access Hollywood scandal broke during the 2016 election campaign. “I don’t even wait. And when you’re a star, they let you do it. You can do anything. Grab them by the pussy. You can do anything.” – Donald Trump 2005
The first Trump defense is to deny, even when caught of tape AND the other people on the tape (like Billy Bush) have confirmed both the authenticity of tape and that the discussions recorded actually happened.
When that denial gets debunked or no longer seems to be acting as an effective firewall, Trump switches the argument to downplaying. He does not give in to admitting guilt, at least not completely. He maintains arguments and denials on numerous facets even if forced to concede on one of them, but starts adding this (or similar) hypotheticals to every denial, “Even if I had done it, there would be nothing wrong with it.”
And if that gets debunked and there was something inarguable wrong with the his behavior, he make statements designed to deflect the incoming attacks to they don’t land a direct and damaging hit. He says things like, “It wasn’t as big a deal as the Fake News Media is making it out to be.” This was what Trump sought to accomplish with his “locker room talk” remarks.
Next comes diverting, and like downplaying, it comes in several stages. For Trump, the first order is to say something outrageous on Twitter or to propose some new policy like forced sterilization of illegal immigrants. It needs to be something so over the top that it sucks all the oxygen (especially on social media) out of what should be an inferno caused by the original offense. But diverting also includes, like in the current scandal over the Ukraine, an element of finding a related (even if only incredibly loosely) action by a political rival (in this case, former Vice President Joe Biden) to hold up and say, “See, THEY did it too!”
Finally, when it is clear Trump did what he was accused of, and that is was as bad as it was made out to be, and that his behavior was far worse than any he pointed out in the pasts of his political rivals, Trump will seek to discredit the investigators. He did this with FBI agents Peter Strzok and Lisa Page. And FBI Director James Comey. And Special Counsel Robert Mueller. And the broader intelligence community (FBI, CIA, FISA courts). He blames people for having been holdovers from the Obama administration like Michael Flynn. He blames people for being disloyal like Jeff Sessions. Everything is the “deep state” or “partisan (which he already used in the whistle-blower case)” or his favorite, a “witch hunt.” Smear anyone and everyone even tangentially involved in the investigation, so that no matter how irrefutable the verdict, the base will not believe it.
And how the hell is this all Bill Clinton’s fault?
When Congress was considering the Intelligence Community Whistleblower Protection Act back in 1998, President Clinton’s Office of Legal Counsel at the Justice Department weighed-in strongly against the Act. In a brief, the Counsel claimed that “vesting in individual federal employees the power to control disclosure of classified information” would be “unconstitutional.” in other words, because whistle-blower complaints could (especially in the case of the intelligence community) contain classified information, or given that the investigators might need access to classified information to assess the validity of the complaint, the complaints count not be handled by some staffer in a windowless office somewhere in the basement of some federal office building. The way Congress decided to work around this objection (from a Democratic administration) was to institute the very process (of having an Inspector General review the complaints) currently vexing the Democratic House. President Barack Obama further strengthened the Director of National Intelligence role in 2012 by giving the DNI overall responsibility for Intelligence Community whistle-blowing and source protection.
It is also noteworthy that Bill Clinton (or at least, his administration) played a significant role in the Mueller investigation. The Independent Counsel statute, which had been in effect during the investigation (and subsequent impeachment) of President Clinton, expired in 1999. The statute was not renewed, leaving Bill Clinton’s Attorney General Janet Reno to institute a series of procedural regulations at the Justice Department governing the appointment of Special Counsels. Given the nearly decade-long siege her president had recently exited (at least in terms of surviving impeachment), Reno wrote rules which limited the power and authority of a Special Counsel and placed that Counsel firmly under the auspices of the Attorney General. While her intentions were good, her rules allowed Acting Attorney General Rod Rosenstein to severely limit the scope and action-ability of Special Counsel Robert Mueller’s probe and facilitated Rosenstein’s successor (William Barr) limiting the release of the report to egregiously redacted versions while allowing Barr to be the sole arbiter of what the report concluded.
So where does the fight go from here?
Acting Director of National Intelligence Joseph Maguire is scheduled to testify publicly before the House Intelligence Committee this Thursday, although he and attorneys representing his office are still fighting that subpoena (and the one demanding the turnover of the whistle-blower complaint). The courts are being asked (by both sides) to intervene, but any lower court victories by either side will certainly be immediately appealed until the case eventually reaches the Supreme Court.
This could take months.
And if it does, guess what?
The alleged Trump actions which prompted the whistle-blower complaint are estimated to have occurred in late July. If the Supreme Court rules in late October that the Intelligence Community Inspector General did have authority in the matter, and that the requirement to submit the complaint to the House Intelligence Committee was a mandate and not a suggestion, could the Director of National Intelligence (which could be either still be acting DNI Maguire or could be a Trump-selected permanent replacement) not make the argument that the passage of more than three months since the complaint invalidates the “urgency” requirement in the statute? Given all the leaks to date, and given President Trump’s and Rudy Giuliani’s public discussion of the matter, could the DNI not also make the argument that there was no longer a reason for this event to even be a secretive whistle-blower case. Effectively, if the charges and the defense are both publicly known, and Congress alone has the authority through impeachment to accuse the president of crimes, does the whistle-blower complaint even still contain an “actionable and credible threat?”
The more time passes, the less likely the House Intelligence Committee will win a full victory in their oversight attempts.
The more time passes, the more likely it is Trump avoids a direct hit that might cripple (or end) his presidency.
Seems we may have to add a 6th ‘D’ to Trump’s playbook, for when all the others are exhausted: