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1/ It's been the longstanding view of the Executive branch--incl. in Democratic administrations--that this and similar statutes must be read to give the POTUS the final word on whether and how *classified* info will be provided to the HPSCI and SSCI.
@just_security @lawfareblog
@just_security @lawfareblog
2/ See, e.g., this 1998 OLC opinion/testimony, a 2010 DOJ views letter on this very statute, & the final sentence of the @BarackObama signing statement:
justice.gov/file/19671/dow…
justice.gov/sites/default/…
coherentbabble.com/Statements/SSh…
justice.gov/file/19671/dow…
justice.gov/sites/default/…
coherentbabble.com/Statements/SSh…
3/ In practice, however, such classified info is virtually never held back in such cases, at least not from committee leadership--and, importantly, as far as the @RepAdamSchiff letters reveal, that's *not* the issue here. Instead, ODNI apparently cites two other things:
4/ First, that the complaint refers to communications that are "potentially privileged" on some other grounds (presumably some form of executive privilege not involving classified info), and second and more intriguingly, that the conduct complained of . . .
5/ . . . was "by someone outside of the Intelligence Community." We don't yet have the 09/13 ODNI letter explaining these objections (Rep. Schiff--please release it!), but presumably ODNI is citing the statutory definition of "urgent concern," which refers to . . .
6/ ... conduct "relating to the funding, administration, or operation of an intelligence activity *within the responsibility and authority of the Director of National Intelligence.*" Although the POTUS is within--indeed, he heads--the "Intelligence Community," . . .
7/ ... he and others in the Office of the POTUS aren't under the authority of the DNI, and therefore appear to be outside the aegis of the whistleblower law, at least as DOJ & ODNI are construing it. ...
8/ In addition, ODNI has "refused to rule out" to @RepAdamSchiff "that the urgent concern, and underlying conduct, relates to an area of active investigation by the Committee." For these reasons, it's probably reasonable for Schiff to presume, as he does ...
9/ ... "that the serious misconduct at issue involves the President of the United States and/or other senior White House or Administration officials," and that ODNI/DOJ don't want HPSCI to know about it. What's less clear is whether the Whistleblower law in particular ...
10/ ... imposes an obligation on the DNI to disclose such a report of POTUS/WH misconduct, because those persons aren't under the DNI's authority and thus may not be covered by the law. ...
11/ HPSCI ought to be able to require such disclosure pursuant to its ordinary oversight authority (note the 1998 OLC opinion's acknowledgement that Congress "obviously" has "significant" interests "in disclosure of evidence of wrongdoing or abuse"). ...
12/ It remains to be seen, however, whether Section 3033 is the means to that end.
@RepAdamSchiff @lawfareblog @just_security @K8brannen
@RepAdamSchiff @lawfareblog @just_security @K8brannen
13/ I should add that *if* this is the way ODNI is reading 3033, it's not obviously correct. What's covered is "a serious or flagrant problem, abuse, violation of law or Executive order, or deficiency *relating to* the funding, administration, or operation of . . .
14/ ... *an intelligence activity* within the responsibility and authority of the DNI involving classified information." So even if the POTUS or someone else not subject to DNI control is the alleged malefactor, the law appears to cover their conduct if it "relates to" ...
15/ ... an intelligence activity within ODNI's jurisdiction. And perhaps--we don't yet know--the whistleblower's complaint covers such activity.
law.cornell.edu/uscode/text/50…
law.cornell.edu/uscode/text/50…
16/ So what will happen? Hard to say. At least four possibilities: (i) DNI reveals the information in some form to at least some members of HPSCI. (ii) If not, it's *possible* the whistleblower and/or the IG might take it upon themselves to share w/HPSCI ...
17/ ... but at the risk of losing their jobs. The degree of that risk probably depends largely on whether ODNI's nondisclosure will be viewed as reasonable or unreasonable. (iii) Litigation--which might or might not take longer than 14 months. (iv) HPSCI finds out after Jan. 2021
17a/ Continuing here, w/r/t the ODNI explanations:
