The US Intelligence Whistleblower Law, explained

The US Intelligence Whistleblower Law, explained

Trump administration's refusal to share a whistleblower complaint with lawmakers about President Trump’s communications with Ukraine is putting pressure on the legal rules for whistleblower complaints filed by members of the intelligence community. This is how those rules are supposed to work.

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Joseph Maguire (Source: Wikimedia Commons)

By Charlie Savage

The US Congress is in a sharply escalating standoff with the Trump administration over its refusal to share a whistleblower complaint with lawmakers that is said to be at least in part about President Donald Trump’s communications with Ukraine.

The chairman of the House Intelligence Committee, Rep. Adam Schiff, D-Calif., has accused the acting director of national intelligence, Joseph Maguire, of violating the law by refusing to turn over the information to his panel, which conducts oversight of the intelligence community. But the Justice Department has said Maguire can lawfully keep it secret, according to his lawyer.

Details about the complaint have nevertheless started trickling out, suggesting that it may center on efforts by Trump to use his official powers, like the ability to delay military aid to coerce Ukraine into opening a criminal investigation into former Vice President Joe Biden, the front-runner for the 2020 Democratic presidential nomination.


Some of Trump’s pressuring of Ukraine has taken place in plain sight, but the identity of the whistleblower and details of the allegations remained hidden. Trump attacked the whistleblower on Friday as partisan while defending his conversations with foreign leaders as appropriate.

This intensifying furor is putting pressure on the legal rules for whistleblower complaints filed by members of the intelligence community. This is how those rules are supposed to work.

What is a whistleblower?

A whistleblower is someone inside an organisation who sees a problem that is going uncorrected — like waste, fraud, abuse, criminal behavior, or something that threatens public safety and security — and tries to bring it to light.

In ordinary parlance, a whistleblower can be someone who speaks out publicly or provides information to journalists. But the government tries to maintain control of information by defining a whistleblower, for legal purposes, as someone who follows certain procedures that channel a complaint to its internal oversight mechanisms — chiefly, inspectors general and congressional oversight committees.

As an incentive for raising concerns in the way the government prefers, the law provides safeguards to whistleblowers who obey the rules, like shielding them from losing their security clearances or otherwise being punished in retaliation, like being passed over for promotion, transferred, demoted or fired.

What are the rules for intelligence whistleblowers?

Whistleblowing within the intelligence community presents a special set of tensions, both because the government wants to keep classified information secret and because presidents of both parties have tried to maintain control over decisions about disclosing internal information to lawmakers.

Congress, however, generally disagrees with the executive branch’s expansive theory of presidential control over information. The two branches worked out a compromise that Congress passed as the Intelligence Community Whistleblower Protection Act in 1998 and amended in 2010 and 2014.

How can Congress get whistleblower complaints?

That law sets up a special process that allows intelligence employees or contractors to provide information to Congress in exchange for protecting them from retaliation or the threat of reprisal. Under that procedure, they submit the complaint for lawmakers to the intelligence community’s inspector general.

Under the law, the inspector general must decide within 14 days whether the information is credible. The inspector general must also determine whether the allegations amount to an “urgent concern”, meaning they relate to a “serious or flagrant problem, abuse, violation of the law or executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the director of national intelligence involving classified information”.

If the complaint meets that standard, the inspector general is supposed to forward it to the director of national intelligence. The law says that within seven days of receiving the complaint, the director in turn shall forward the material to the House and Senate intelligence oversight committees.

Is that what happened here?

No. While the inspector general for the intelligence community, Michael Atkinson, told Congress that he had determined that the complaint was credible and qualified as an “urgent concern”, Maguire has refused to transmit it to Congress.

Can the whistleblower do anything more?

The Intelligence Community Whistleblower Protection Act says that if the inspector general rejects a complaint as not credible or not presenting an urgent concern, the official who filed it may still then provide the information to Congress. But in order to continue to be legally protected from reprisal, he or she must obey directions from the director of national intelligence on how to approach lawmakers in a way that secures classified information.

That raises another loophole: The whistleblower first must obtain specific directions from the director of national intelligence before he or she can obey them. Here, Maguire is apparently refusing to provide any, according to a House Intelligence Committee official.

Why does the administration say Maguire is not breaking the law?

Maguire’s top lawyer, Jason Klitenic, has maintained that it is lawful for Maguire to withhold the complaint from Congress. Klitenic, who said he consulted the Justice Department, has made arguments in letters to Schiff both about how he interprets the statute and about constitutional law.

He disputed Atkinson’s determination that the complaint meets the legal standard of an “urgent concern”, stressing that it involves the activities of someone — apparently Trump — who is outside Maguire’s authority. But Atkinson has said that what matters is that the activity “relates to one of the most significant and important” of Maguire’s “responsibilities to the American people,” so it does fall within the legal standard.

Atkinson has also raised a broader concern with the Justice Department’s notion that the director of national intelligence can proclaim that a complaint, filed in the “urgent concern” process, falls outside its scope: It suggests that the current whistleblower has no legal protections from reprisal, and could deter future whistleblower complaints, as well.

What about executive privilege?

Klitenic also suggested that Trump administration lawyers think the Constitution gives the president a legal right to order Maguire to defy a congressional subpoena for the whistleblower complaint. The complaint pertained to “confidential and potentially privileged matters relating to the interests of other stakeholders within the executive branch”, Klitenic wrote.

In support of that notion, Klitenic pointed to claims by two Democratic presidents, Barack Obama and Bill Clinton, when they signed the present system into law in 1998 and 2010. They asserted a constitutional right for presidents to control the disclosure of information to Congress related to their constitutional duties.

Lawyers for Congress and lawyers for the executive branch have long disagreed over where to draw the line between lawmakers’ power to obtain information and the president’s power to keep information secret.


There is little Supreme Court precedent because the two branches have generally resolved prior disputes through negotiation and accommodation. But Trump vowed to fight “all” congressional oversight subpoenas after Democrats took over the House this year, leading to a series of lawsuits. This issue may be fated to become another.