Over the last few days there has been fevered speculation over what President Donald Trump said to the president of the Ukraine and whether he threatened to withhold American aid unless the Ukraine agreed to investigate Trump’s political enemies, specifically former Vice President Joe Biden. We may know as soon as Wednesday exactly what happened on the call: Trump has announced he is releasing a transcript. But this call might just be the tip of the iceberg. We still don't know the details of the whistleblower complaint and there are some reports that the complaint involves a series of events rather than just one phone call.
If reports are true, Trump's statements could be illegal on multiple counts. It wouldn't be a surprise. Only three months ago Trump was publicly declaring he couldn’t see anything wrong with accepting election help from foreign governments.
But, as shocking as these charges are, there are more important issues at stake than whether Donald Trump said something idiotic or pushed for something illegal. Sadly, that’s just business as usual. These things happen a dozen times a day. But having his administration openly conspire to cover up the full context of what happened with the whistleblower complaint that started the whole debate is a four-alarm fire when it comes to the rule of law.
Stop the stalling
In a nutshell, despite the inspector general’s unreviewable determination that this whistleblower complaint was reportable, acting Director of National Intelligence (DNI) Joseph Maguire has categorically refused to send the complaint to Congress as he is legally required to do. He is also refusing to allow the whistleblower to communicate directly with Congress even though the statute says he must.
To make matters worse, the inspector general himself, Michael Atkinson, has also been forbidden to reveal any of the details of the complaint to Congress despite the inspector general’s conclusion that it “relates to one of the most significant and important of the DNI’s responsibilities to the American people.”
Keeping Corey Lewandowski from giving full testimony is bad enough. But refusing to follow the law and muzzling an inspector general who is trying to warn Congress about a threat regarding “one of the most significant and important of the DNI’s responsibilities to the American people” is far, far worse. It isn’t something that Congress — or America — can afford to let pass.
But as we are, still, a nation of laws, the focus here should be on enforcing compliance with the law rather than on political speculation about the content of the whistleblower’s complaint. And the law is quite clear. When a member of the intelligence community makes a complaint that is deemed both credible and a matter of urgent concern by the Office of the Inspector General, it “shall” be transmitted to Congress. There’s no wiggle room and there’s no space for second guessing by the DNI.
There are very good reasons for this law and you can’t put it better than does the preamble to the Intelligence Community Whistleblower Protection Act itself.
“Congress, as a co-equal branch of Government, is empowered by the Constitution to serve as a check on the executive branch; in that capacity, it has a "need to know'' of allegations of wrongdoing within the executive branch, including allegations of wrongdoing in the Intelligence Community. No basis in law exists for requiring prior authorization of disclosures to the intelligence committees of Congress by employees of the executive branch of classified information about wrongdoing within the Intelligence Community.”
A path to the information the American people need
There is a way through this for Congress. On Thursday, acting DNI Maquire will be testifying before the House Intelligence Committee. It is one thing to say that no law requires a complaint be reported to Congress. It is another thing to say that Congress can’t ask questions about it. Absent an express claim of executive privilege made directly by the president, the House Intelligence Committee has every right to ask any questions it wants and Maguire should be made to answer them. Far too often, Congress has allowed witnesses simply to ignore questions or refuse to answer them on the grounds that the president might not like it. Congress needs to end that here.
If the president does claim executive privilege, the questions should focus, not on the details of the complaint itself, but on the details of the executive privilege claim. There can be no claim of executive privilege for illegal activity. Claiming executive privilege to keep Congress from investigating wrongdoing isn’t a presidential prerogative, it’s a coverup.
So Maquire needs to be asked, directly, whether the whistleblower’s complaint involved illegal activity. Since there is no basis for refusing to answer that question either “yes” or “no,” he should be required to answer and held in contempt on the spot if he refuses.
If the answer is “yes,” he should be told there no privilege for illegal conduct and questioned about the details of the complaint. If he still refuses to answer, he should, again, be found in contempt on the spot.
There is a time for political calculation and there is time to step up and do your job. It is past time that Congress defended its authority as a co-equal branch of government. With this whistleblower complaint, Trump has thrown down the gauntlet. Congress must pick it up and accept the challenge. Defeat, either for Congress or the rule of law, is not an option.
Chris Truax, an appellate lawyer in San Diego, is an adviser to Republicans for the Rule of Law and a member of USA TODAY's Board of Contributors.