On August 12, 2019, Inspector General for the Intelligence Community (ICIG) Michael Atkinson received a whistleblower complaint accusing President Donald Trump of abusing his office by pressuring the Ukrainian President to investigate a political rival and his son during a July 25, 2019 telephone call, and White House officials of hiding records pertaining to the call. On August 26, having found the complaint involves an “urgent concern” that “appears credible,” the ICIG fulfilled his statutory duty under the Intelligence Community Whistleblower Protection Act (ICWPA) by transmitting the complaint to the Director of National Intelligence (DNI). That was all the ICWPA required of him.
Now, the ICIG appears to be investigating the whistleblower’s allegations pursuant to the ICIG’s own statutory authority. But the ICIG’s authority is limited in ways that may prevent him from accessing important information within the White House. The ICIG’s other statutory authorities provide additional avenues for action.
The ICIG appears to be investigating the whistleblower’s allegations
In his transmittal letter to the DNI, the ICIG stated that he understood “the records of the call will be relevant to any further investigation of this matter.” As such, he informed the DNI that he had sent the White House Counsel
a notice of a document access request and a document hold notice . . . to request access to and the preservation of any and all records related to the President’s [July 25] call and alleged related efforts to solicit, obtain, or receive assistance from foreign nationals in Ukraine, directly or indirectly, in connection with a Federal election.
The ICIG stated he issued this document hold and access request “pursuant to the ICIG’s authority to conduct independent investigations and reviews on [sic] programs and activities within the responsibility of the [DNI].”
In support of this hold and access request, the ICIG cited his statutory entitlements to (1) “direct access” to all information “relat[ing] to the programs and activities with respect to which the [ICIG] has responsibilities under this section,” 50 U.S.C. § 3033(g)(2)(C), and (2) all “national intelligence and intelligence related to the national security” to which the DNI has access under 50 U.S.C. § 3024(b). Section 3024(b) provides as follows:
Unless otherwise directed by the President, the [DNI] shall have access to all national intelligence and intelligence related to the national security which is collected by any Federal department, agency, or other entity, except as otherwise provided by law or, as appropriate, under guidelines agreed upon by the Attorney General and the [DNI].
The ICIG’s letter does not indicate what “further investigation of this matter” any records of the President’s call would “be relevant to.” No law required the ICIG to issue this hold and request, and doing so was not a necessary incident of the ICIG’s transmission of the whistleblower complaint to the DNI. What’s more, the ICIG saw fit to inform the DNI that 50 U.S.C. § 3033(g)(3) authorizes the ICIG to, among other things,
receive and investigate . . . complaints or information from any person concerning the existence of an activity within the authorities of the [DNI] constituting a violation of laws, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to the public health and safety.
Thus, the ICIG has authority to investigate a far broader category of whistleblower complaints than the “urgent concern[s]” he must forward to the DNI. This is especially so in the wake of the Department of Justice Office of Legal Counsel’s (DOJ OLC’s) restrictive construction of the term “urgent concern.” See 50 U.S.C. § 3033(k)(5)(G)(i) (defining an “urgent concern” as a “ serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the [DNI] involving classified information, but [not a disagreement over] public policy matters.”).
If the foregoing is any indication, the ICIG appears to be conducting his own investigation of at least some aspects of the President’s attempts to solicit assistance in the 2020 election from foreign nationals.
In so doing, the ICIG would be authorized to coordinate with and secure the assistance of not only IGs of IC-member agencies, but also with IGs of any “Federal, State[,] or local government agency or unit thereof.” 50 U.S.C. § 3033(j)(4)(A). For example, the ICIG could work with the State Department’s IG to secure the sworn testimony of the senior State Department officials said to have been present for the call, as well as documents related to U.S. foreign relations with Ukraine. He could also work with the Department of Defense (DOD) IG to probe the form and implementation of the President’s order freezing military aid to Ukraine. The DOD IG may already be probing this and related topics.
The ICIG’s authority is limited in ways that could stymie a full and thorough investigation
But even under section 3033(g)(3), the ICIG’s authority appears limited to investigating “activit[ies] within the authorities of the [DNI].” Therefore, to fully investigate the whistleblower’s allegations, the ICIG would need to coordinate with or request assistance from another IG with jurisdiction to investigate the programs, activities, offices, and records of the National Security Council (NSC) and potentially other agencies that comprise the Executive Office of the President (EOP).
Unfortunately, as lamented by DOJ IG Michael Horowitz at the American University Washington College of Law’s October 2, 2019 event commemorating the launch of The Oversight Project, Congress has not yet created such an entity. Without an EOP IG or NSC IG to coordinate with or request assistance from, the ICIG might not be granted access to all documents and individuals necessary for a thorough investigation. Indeed, under 50 U.S.C. § 3033(g)(5)(B), the ICIG may not use his subpoena power to obtain “data and evidence” from a Federal entity, including an EOP agency. Also, the ICIG lacks the authority to recommend actions to EOP agencies upon completion of his investigation.
The ICIG should invoke his authorities to address the whistleblower’s allegations as follows
The ICIG should supplement his investigation with the following actions to address the concerns raised in the whistleblower’s complaint.
First, under 50 U.S.C. § 3033(k)(1)(B)(vii), the ICIG can suggest legislative fixes to address the gaps in the law he identified in his September 17, 2019 letter, including the lack of “legally enforceable statutory protection” available to the whistleblower. The ICIG should use this authority to suggest the following:
- Expand the definition of “urgent concern” to include concerns regarding the conduct of any government official (including the President, NSC officials, and others within the EOP).
- Require the DNI to forward to Congress any whistleblower complaint “that the ICIG reasonably believes” to be an “urgent concern.”
- Require the DNI and all other intelligence-community agency heads to protect any whistleblower who discloses information s/he reasonably believes to evidence an “urgent concern.” In his September 17 letter, the ICIG stated he requested an OLC opinion on this.
- Strengthen the protections afforded to IC whistleblowers by:
- Defining the term “reprisal” to include all actions or threats of actions:
- Falling within the twelve categories of “personnel action[s]” listed in the (non-IC) Whistleblower Protection Act, see 5 U.S.C. § 2302(a)(2)(A); and
- Affecting the whistleblower’s security clearance or access to classified information.
- Providing a statutorily-prescribed process for enforcing whistleblower protection laws in secure proceedings before a Federal court or administrative tribunal (ex. the Merit Systems Protection Board, followed by an appeal to an Article III court).
- Passing an IC equivalent of the No FEAR Act that requires DNI and other intelligence agencies to post accurate information regarding whistleblower and discrimination protections. The DNI’s “No FEAR Act” website currently lists inaccurate information regarding whistleblower protections. For example, it states that IC employees can request whistleblower protection from the U.S. Office of Special Counsel (OSC), even though 5 U.S.C. § 2302(a)(2)(C) explicitly exempts the IC from OSC’s jurisdiction.
- Defining the term “reprisal” to include all actions or threats of actions:
Next, under 50 U.S.C. § 3033(b)(2) and (e)(2), the ICIG is authorized and duty-bound to issue recommendations to the DNI regarding reforms to prevent aspects of this situation happening again and correct any harm it has caused. The ICIG should use this authority to recommend that the DNI:
- Codify into official policy its previously-longstanding practice of forwarding to Congress all whistleblower complaints it receives from the ICIG rather than only those the DNI finds constitute “urgent concerns.”
- Guarantee whistleblower protection to any IC whistleblower who reports anything s/he reasonably believes to constitute an “urgent concern.”
- Attempt to locate and review records of the July 25 call and any other records of the Trump-Ukraine affair and use them to secure any vulnerabilities they expose.
Finally, under 28 U.S.C. § 535, the ICIG is required to forward to the Attorney General any apparent criminal violations the ICIG identifies in the course of his investigation. Violations that the ICIG must forward include any uncovered by his investigation into the whistleblower’s allegations, including those related to White House officials’ concealment of the July 25 call records. Although OLC stated it already forwarded the allegations of criminal conduct contained in the whistleblower complaint itself, this would not alleviate the ICIG’s obligation to forward any he encounters during the investigation into the whistleblower’s allegations.
The ICIG fulfilled his statutory duty when he determined the whistleblower’s complaint appeared to credibly allege an urgent concern and forwarded it to the DNI. Now, he appears to be invoking his authority to investigate the complaint’s allegations. Investigating such troubling matters is an inherent IG function and a public service. But his efforts will surely be stymied by limitations on his jurisdiction over the EOP and the lack of an EOP IG or NSC IG to coordinate with or request assistance from. Therefore, in addition to investigation, the ICIG’s next steps should include the equally-inherent IG functions of suggesting legislative changes to Congress and recommending corrective action and administrative reforms to the DNI.
*All statements of fact, opinion, or analysis expressed in this post are those of the author, speaking in his personal capacity, and do not reflect the official positions or views of the U.S. Government. Nothing in this post should be construed as asserting or implying U.S. Government authentication of information or endorsement of the author’s views.