Five things to know about the whistleblower complaint

President TrumpDonald John TrumpThis week: House kicks off public phase of impeachment inquiry Impeachment week: Trump probe hits crucial point Judd Gregg: The big, big and bigger problem MORE is facing an escalating controversy surrounding a whistleblower complaint said to be centered on his communications with Ukraine’s leader.

Congress has not seen the complaint, even though Intelligence Community Inspector General Michael Atkinson determined that the allegations were credible and of “urgent concern.” 

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Here are five things to know about the complaint and the whistleblower process.

It’s supposed to protect classified information

The intelligence community whistleblower statute is set up to provide a pathway for individuals to come forward with allegations of urgent concern in a way that does not endanger classified information.

Atkinson, describing the process in a letter to Congress earlier this month, said it’s supposed to allow those complaining to contact congressional intelligence committees directly.

Someone making a complaint would first go to the inspector general (IG) to relay it. The IG for the intelligence community would then spend two weeks conducting a preliminary investigation to determine whether the complaint is both credible and of urgent concern. An urgent concern is considered to be “a serious or flagrant problem, abuse, violation of the law of Executive order, or deficiency,” according to the statute.

The IG would then bring this complaint up the chain of command and share their findings with the director of national intelligence (DNI), who would be expected to pass along this information to the congressional oversight committees within seven days of receiving the vetted complaint.

As a fail-safe, the DNI can determine that the information in the complaint is too sensitive to share with Congress and decline to share it, but either way, the DNI is required to notify Congress about this determination.

Maguire finds loophole to keep whistleblower from Congress

The acting DNI under Trump, Joseph Maguire, is not allowing the whistleblower’s report to be shared with Congress, even though the IG found it to be credible and of urgent concern.

Maguire is making his case on an argument put forward by Jason Klitenic, the DNI’s general counsel.

In a letter to Atkinson, Klitenic said Maguire, in consultation with the Department of Justice, determined that “no statute requires disclosure of the complaint to the intelligence committees” because “the disclosure in this case did not concern allegations of conduct by a member of the Intelligence Community or involve an intelligence activity under the DNI’s supervision.”

“What he's saying is, ‘It's not that I'm saying I'm not going to follow the statute, it's that the statute is not triggered because I don't agree that this is an urgent concern that falls within the statute,” said Steven Cash, a former staffer and counsel to the Senate Intelligence Committee.

Legal experts who have practiced in this field for decades, however, say they have never heard of a DNI overruling an IG assessment to send a complaint to Congress, particularly one found to be credible and urgent.

Atkinson has rejected Maguire’s explanation, stating that he believes this matter falls within the DNI’s jurisdiction. In a letter sent to the House Intelligence Committee last week, Atkinson said this disclosure relates to “one of the most significant and important of the DNI’s responsibilities to the American people.”

Legal experts warn this episode could subvert the process

Legal experts on whistleblower complaints say Maguire is going too far.

“We are seeing not just a politicization but a legalization of the whistleblower process that was never intended to exist. It was not intended that the system would be put under a microscope so that lawyers could derive any type of loophole interpretation,” said Mark Zaid, a D.C.-based national security lawyer who handles whistleblower complaints. “These are the type of cases that are supposed to be broadly interpreted.”

Zaid spoke to The Hill for this story shortly before he joined the legal team representing the whistleblower in this case.

Cash, a lawyer at Day Pitney specializing in criminal and national security law, argued that Maguire has misinterpreted the statute in making his claim that the complaint falls outside the IC whistleblower process.

“The statute says ‘relating to an intelligence activity,’” he said. “I think [Maguire is] wrong.”

Whistleblowers put in tough spot

The politicization of this case is raising the chances that the individual’s identity could be exposed.

Multiple news outlets have zeroed in on the details of the allegations, describing in detail the topics Trump discussed with Ukrainian President Volodymyr Zelensky.

And while the whistleblower brought the allegations forward through the proper channels, the president has since gone on the attack, arguing the whistleblower is a partisan even as he acknowledges not knowing the person’s identity.

This could have a chilling effect that deters others from coming forward with allegations.

“I think the more this story becomes about the whistleblower, the more that the identity is put out into the public and then they become the subject of attack by either or both sides, the less likely anyone else is going to want to come forward because why would they want to subject themselves or their family to such scrutiny?” said Zaid. “The whistleblower is not the story. The whistleblower’s identity is irrelevant.”

Congress has several tools to compel the DNI to hand over the complaint

Congress has several tools to compel the DNI to hand over the complaint, and House Democrats have already conveyed plans to use them if Maguire refuses to budge.

House Intelligence Committee Chairman Adam SchiffAdam Bennett SchiffImpeachment week: Trump probe hits crucial point This week: House kicks off public phase of impeachment inquiry Sunday shows — New impeachment phase dominates MORE (D-Calif.), who has already issued a subpoena to Maguire, has announced that the acting DNI will testify Thursday about his decision to not share the complaint. He’s also telegraphed that Democrats could try to withhold funding from the DNI or go to court to get the complaint.

It is also possible the White House will seek to exert privilege over Maguire’s testimony, which would set up yet another subpoena showdown between the executive and legislative branches.

Legal experts say Schiff can go after Maguire and take him to court to enforce the subpoena but that it would likely become a lengthy court battle. And even then, the battle between Maguire and Atkinson is not subject to judicial review. 

They also strongly argued against the idea of subpoenaing the whistleblower, as doing so would strip the individual of their protections and undermine the system.

The fight over the complaint appears to be just getting started.

“If the allegations that appear to be out there are in any way true, this is perhaps the most significant issue that has faced the intelligence committees ever,” said Cash. “This is as big as it gets.”