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18/ Following up now that @kyledcheney has tweeted the ODNI letters to @RepAdamSchiff (letters that HPSCI really should post):
@just_security @lawfareblog
@just_security @lawfareblog
19/ As I suggested earlier, the DNI *isn't* relying upon the (traditional) Executive branch argument that the POTUS has the right to keep especially sensitive classified info from Congress.
20/ And ODNI barely make a tentative nod to the possibility that the complaint "potentially" contains other "privileged" info. Instead, the refusal is based upon the conclusion of the DNI and DOJ that the complaint isn't covered by the statute in the first instance because ...
21/ ... it doesn't relate to any "intelligence activity under the supervision of the DNI" (part of the definition of an "urgent concern"). The ICIG obviously concluded to the contrary. And we don't know enough to assess who's right on that factual question--the ICIG or the DNI.
22/ But what gives the DNI the authority to countermand the IG's determination? 3033(k)(5)(C) appears to require that the DNI "shall" submit the complaint to the intel committees after receiving it from the IG "under subparagraph (B)."
23/ It doesn't refer to any DNI authority to reconsider the IG's conclusion before doing so. According to the 09/13 letter, however, if the DNI concludes that the IG was wrong and that the complaint doesn't describe an "urgent concern," ...
24/ ... then the DNI didn't receive the complaint the IG "under subparagraph (B)" in the first instance and thus the subsection (C) transmission requirement isn't triggered. Wait -- what?
25/ *Of course* the IG transmitted the complaint to the DNI under subsection (B), whether or not he was right in his characterization of it as an "urgent concern." Unless I'm missing something, then, the ODNI/DOJ objection makes no sense as a matter of statutory construction.
