By Rachel Feinstein
In July 2019, President Donald Trump made a phone call to Ukrainian President Voloymyr Zelensky. This phone call, and the handling of the ensuing transcript, prompted a former White House employee to submit a whistleblower complaint to the Intelligence Community Inspector General (ICIG) in the Office of the Director of National Intelligence (ODNI). In his September 2019 testimony, regarding this complaint and its handling, before the House Permanent Select Committee on Intelligence, Acting Director of National Intelligence (ADNI) Joseph Maguire made the following statement in his opening remarks:
“[…] this [whistleblower] complaint concerns conduct by someone outside the Intelligence Community, unrelated to funding, administration, or operation of an intelligence activity under my supervision. Because the allegation on the face did not appear to fall in the statutory framework, my office consulted with the United States Department of Justice, Office of Legal Counsel and we included the Inspector General in those consultations.”
AD Maguire noted that his decision to consult with the U.S. Department of Justice, Office of Legal Counsel, prior to submitting the whistleblower complaint to Congress, as required by law, was rationalized by the fact that the President seemingly falls outside of the Intelligence Community (IC). However, is the President of the United States actually outside of the intelligence community, and, if not, did AD Maguire violate the law?
Under the Intelligence Community Whistleblower Protection Act, Title VII § 702, the Intelligence Community Inspector General (IC IG) shall transmit any complaint, or information it deems credible, to the DNI who shall, within 7 days of receipt, forward the report to the congressional intelligence committees with any comments he considers appropriate. The Act makes no mention of consultation with the DOJ, and even provides further instructions for IC employees to report directly to Congress, if the IC IG does not transmit, or transmit in accurate form, the complaint to the DNI. On its face, it seems that the DNI did violate Title VII by not transmitting the complaint directly to Congress. As noted above, AD Maguire justifies this violation, in part, because the subject of the complaint, the President of the United States, supposedly sits outside of the IC and therefore outside of the ODNI’s jurisdiction.
According to the ODNI, the IC includes 17 organizations. Eight of these organizations fall within the Department of Defense (DOD) framework, with at least one housed in each of the five service branches of our armed forces – Army, Navy, Marines, Air Force, and Coast Guard. The strongest argument in favor of AD Maguire’s statement is two-fold: (1) the White House and the Office of the Presidency are not intelligence gathering organizations, and therefore do not fall within the IC in that traditional sense; and (2) the ODNI, and the IC IG within, is an independent agency and not part of the Executive Office of the President, so the President would not be a part of it. However, given the President’s role as the Chief Executive of all administrative agencies (which include another seven of the listed IC organizations) and, more specifically, as Commander in Chief of the United States Armed Forces, how can one argue that said individual is both in charge of all but two (the CIA and the ODNI) intelligence gathering organizations that fall within the IC, but not be a part of the IC himself?
Alternatively, if we are to argue that none of the above information provides a solid footing to place the President within the IC, then we must ask ourselves where complaints by members of the intelligence community regarding the President should go. The most obvious answer would be to look at the President’s role as Commander in Chief of our armed forces. Complaints regarding members of the DOD should be submitted to the DOD’s IG. Title VII § 8H notes that employees of IC organizations that fall under the DOD and DOJ frameworks may, should they so choose, file complaints with their internal IG’s. However, the proceeding instructions are identical to those for complaints submitted to the IC IG, in that the alternate IG, if they find the complaint credible, shall submit the complaint to the head of the department, who shall then submit the complaint along with any comments to the congressional intelligence committees within 7 calendar days. Again, there is no mention of consultation with any other offices within the DOD or DOJ.
Ultimately, whatever viewpoint one adopts, it is clear that this is a complex situation with no easy answer. The President, as the Chief Executive and Commander in Chief, should not both retain control over organizations, but, at the same time, not be subject to their norms, regulations, and rules, especially with regard to national security. From this perspective, at minimum, the President should be subject to oversight by DOD’s IG. At maximum, the President should be considered “inside” the intelligence community and therefore subject to oversight by the IC IG. In either case, AD Maguire clearly violated Title VII by consulting with DOJ’s Office of Legal Counsel first and delaying his submission of the complaint to congress, as is required under the law.