Even with the benefit of investigative journalism, we still don’t know for sure what “urgent concern” motivated someone in the intelligence community to complain about an action or actions by President Donald Trump.
But the fact that the House Intelligence Committee Chairman Adam Schiff (D-Calif.) issued a subpoena in search of information that may involve what the president said to a foreign leader is a reminder of how this terrible, horrible, no good, very bad president has eroded civic and constitutional norms.
Schiff and his committee have been trying to unravel the mystery of what a member of the intelligence community found so upsetting that he or she took advantage of a federal whistleblower statute to flag it with the community’s inspector general.
The pushback from the panel was inspired by the refusal of acting Director of National Intelligence Joseph Maguire to forward information about the complaint to Congress, as the 1998 Intelligence Community Whistleblower Protection Act requires.
The general counsel for the director of national intelligence told the House and Senate Intelligence committees that the whistleblower law doesn’t apply in this case because the complaint a) refers to conduct of someone outside the intelligence community, and b) involves confidential and potentially privileged communications. The counsel, Jason Klitenic, indicated that Maguire was acting on legal advice from the Trump Justice Department.
So what’s this all about?
The Washington Post reported on Wednesday that the complaint involved a “promise” Trump made in a conversation with a foreign leader. The Post later reported that the conversation involved Ukraine. On July 25, Trump spoke on the telephone to Ukrainian President Volodymyr Zelensky.
That has led to speculation that in that conversation Trump might have tied releasing $250 million in military aid for Ukraine to a commitment by Zelensky to investigate possible connections between then-Vice President Joe Biden’s diplomatic activities in Ukraine and the role of Biden’s son Hunter in an energy company owned by a Ukrainian businessman. (The Trump administration released the aid earlier this month.)
On Thursday 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. Knowing all of this, is anybody dumb enough to believe that I would say something inappropriate with a foreign leader while on such a potentially ‘heavily populated’ call. I would only do what is right anyway, and only do well for the USA!”
On Friday the president doubled down, tweeting: “The Radical Left Democrats and their Fake News Media partners, headed up again by Little Adam Schiff, and batting Zero for 21 against me, are at it again! They think I may have had a ‘dicey’ conversation with a certain foreign leader based on a ‘highly partisan’ whistleblowers’ statement.”
Actually it’s all too easy to imagine Trump saying something inappropriate in a conversation with a foreign leader. This is the president, after all, who tweeted out what seemed to be a classified reconnaissance photo of the site of an accident at an Iranian space facility. And remember the meeting in which Trump reportedly shared classified information about an Islamic State plot with visiting Russian diplomats?
As for the possibility that Trump might have linked aid to Ukraine to domestic U.S. politics, speculation on that possibility is also understandable. Trump’s political ally and personal attorney, Rudolph Giuliani, agreed in a CNN interview on Thursday that he had asked Ukraine to look into Joe Biden. (Asked on Friday whether he had discussed Biden with the Ukrainian president, Trump said: “It doesn’t matter what I discussed but I will say this, somebody ought to look into Joe Biden.”)
This dispute, like others involving congressional demands for information from the executive branch, may end up in court. The law may support the director of national intelligence’s refusal to forward the whistleblower report to Congress. As an article in Lawfare points out, past presidents also have asserted a right to determine whether to share classified information with Congress.
For example, when President Clinton signed the Intelligence Community Whistleblower Protection Act, he issued a statement noting that the Constitution “vests the President with authority to control disclosure of information when necessary for the discharge of his constitutional responsibilities.”
It’s possible that a court will decide that Congress does have a right to see the complaint Maguire is refusing to turn over — perhaps in conjunction with the House Judiciary Committee’s impeachment inquiry.
But you don’t have to be a Trump supporter to worry about the precedent this would set for future presidents who want to be able to speak candidly to foreign leaders. That’s the problem with Trump: His trashing of norms of behavior that have been followed by past presidents means that future presidents may find it harder to do their job.
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