Complaint against Trump misses key objectives of whistleblower act

Complaint against Trump misses key objectives of whistleblower act
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Donald Trump’s presidency was birthed in the shadow of impeachment. From the start, his opponents predicted its demise, questioning only which scandal might wield the axe. After many accusations, running the gamut from those by actress Stormy Daniels to those that led to the Mueller probe, Democrats in Congress believe they’ve found the real thing with a whistleblower’s complaint about the president’s phone call with Ukrainian President Volodymr Zelensky and his requested “favor” to investigate former vice president Joe BidenJoe BidenCNN's Anderson Cooper mocks WH press secretary over Fox News interview Yang cautions Democrats: Impeachment might not be 'successful' Ocasio-Cortez: Sanders' heart attack was a 'gut check' moment MORE’s son’s dealings in Ukraine.

Setting aside politics, an impeachment inquiry built upon this whistleblower complaint is a bad idea because it is on infirm legal ground. Here’s why:

The Intelligence Community Whistleblower Protection Act of 1998 was based on Congress making six “findings.” These note that “national security is a shared responsibility, requiring joint efforts and mutual respect by Congress and the President,” and that “Congress, as a co-equal branch … is empowered by the Constitution to serve as a check on the executive. … It has a ‘need to know’ allegations of wrongdoing within the executive branch, including allegations of wrongdoing in the Intelligence Community” (IC).

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Critically, the whistleblower act provides that an employee who “intends to report to Congress a complaint or information with respect to an urgent concern” may make that report to the inspector general (IG), who is required to determine, within 14 days, “whether the complaint or information appears credible.” If so, the IG must “transmit” the complaint or information to the Director of National Intelligence (DNI).

The statute then places the onus on the director, who has seven days to “forward such transmittal to the intelligence committees, together with any comments the director considers appropriate.”

The law defines “urgent concern” in three parts. First, “serious or flagrant problems” in intelligence programs and activities involving classified information. Second, a “false statement to Congress, or willful withholding from Congress, on an issue of material fact about any such program or activity.” Third, an act or threat of reprisal against an employee who reports a matter of urgent concern. Importantly, it specifically excludes “differences of opinion concerning public policy matters.”

The goal of the law is clearly spelled out in the explanatory memo as enabling “disclosures to Congress of classified information about wrongdoing within the IC.” The need for the law is explained as being based on a finding that IC employees are “not only reluctant to take the risk of contacting the Congress, but are also disinclined to ‘break ranks’ by making disclosures outside their agencies.” Congress concluded that “it must have access to those employees of the IC who are aware of information, classified or otherwise, exposing corruption, mismanagement or waste within their agencies or elements.”

In other words, the law was drafted to enable disclosure of illegal activity relating to financial matters, willful falsehoods to Congress, withholding of “material facts,” and violations of laws within the ranks of the IC.

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Blame the statute’s dreadful wording for much of the current controversy. For example, an  employee may report a “complaint or information.” The word “information” is extremely broad and does not preclude the reporting of pure hearsay, as in this instance. The law does not restrict disclosures to matters within the direct knowledge or observation of the employee; he or she can report any information. 

Further, the law imposes a low standard of review by the IG. Under the law, the IG is not expected to conduct any rigorous, forensic examination of the allegation to determine veracity. Particularly troubling, the IG needs only to determine that the complaint or information “appears” credible — a very low threshold.

Further, although the law requires the DNI to “forward” the complaint within seven days, the intent of the law appears to allow for withholding and making comments. At the time of the law’s passing, then-Deputy Attorney General Radolph Moss told the Permanent Select Committee on Intelligence that the process of submission to the IG would “allow for the executive branch review and clearance process,” and that section was intended to “authorize heads of agencies … to decide not to transmit an employee’s complaint to the intelligence committees.” 

So, is the current situation justified, based on the above analysis? First, the complainant reported information that President TrumpDonald John TrumpPelosi arrives in Jordan with bipartisan congressional delegation Trump says his Doral resort will no longer host G-7 after backlash CNN's Anderson Cooper mocks WH press secretary over Fox News interview MORE “is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election.” This appears to be pure opinion. The information imparted does not relate to “the funding, administration or operation of an intelligence activity within the responsibility” of the DNI. More importantly, it does not fit within the objectives underpinning the law and does not expose corruption or illegality within the ranks.

Moreover, there are policy reasons why this complaint ought to be treated as being outside the protections of the law. First, it appears to be directly related to “differences of opinions concerning public policy matters” since Trump’s phone call involved diplomatic relations between Ukraine and the U.S. In the call, Trump complained about lack of reciprocity and claimed the U.S. does a lot for Ukraine. Second, the call doesn’t directly entail election interference. Instead, the president suggests a foreign country should investigate alleged corruption by a U.S. national: “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution, and a lot of people want to find out about that, so whatever you can do with the attorney general would be great.”

Now, imagine if the person involved in the alleged corruption was not related to a presidential candidate. Would it be wrong for the president to ask the Ukrainian leader to investigate the matter? In other words, a request to investigate alleged corruption does not become improper solely because the alleged wrongdoer is related to a presidential candidate. Next, allowing the whistleblower to disclose such investigation requests would imperil investigations and violate the privacy of individuals without legal basis. 

Finally, a request to investigate in conjunction with the U.S. attorney general is not election interference per se. The Ukrainian investigation may have established that there was no illegal activity by Biden’s son.

In the end, the whistleblower appears to have been animated by hearsay about a policy difference involving diplomatic relations. His anxiety did not relate to illegal activity within the ranks of the IC, ongoing intelligence activities, or financial corruption. He had a “difference of opinion” with the president. The whistleblower statute was not designed to give him a means to ventilate such differences through Congress.

Sandeep Gopalan (@DrSGopalan) is vice chancellor and executive vice president of academic affairs at Piedmont International University in North Carolina. He previously was a professor of law and pro vice chancellor for academic innovation at Deakin University in Melbourne, Australia. He has co-chaired American Bar Association committees on aerospace/defense and international transactions, was a member of the ABA’s immigration commission, and was dean of law schools in Ireland and Australia. He has taught law in four countries.