, 16 tweets, 9 min read Read on Twitter
THREAD: Why should we be concerned that there may have been a communication between Trump and a foreign leader that involved a "promise" that was thought to be so alarming that it warranted a whistleblower complaint? There are tricky legal issues here I'll try to spell out:
2. I'll first outline the best argument for Trump. The President enjoys wide latitude in foreign affairs. When it comes to the "outside world," the President represents the sovereign:He is basically the voice of the United States and can negotiate with world leaders on its behalf
3. I wrote about this very early on in the context of Trump's possible defense to obstruction charges involving Russia, which is also relevant here politico.com/magazine/story…
4. There is a separation of powers argument here: The President should be able to have confidential and diplomatic communications with other heads of state without undue interference from Congress: World leaders should feel secure that their convos won't be made public
5. HAVING SAID THAT -- there are limitations. First, as @jedshug has written (also in context of obstruction of justice), the President has a fiduciary obligation to act in the *best interests of the United States*. In other words, he cannot abuse his powers for personal gain
@jedshug 6. Further, the "slice" of his "exclusive" Art. II powers is fairly narrow. Congress does have a say, for instance, whether we go to war in the absence of an emergency defensive action. It can also say that certain types of foreign policy actions are illegal
@jedshug 7. So, for instance, while President Reagan might have argued that his actions in Iran Contra were in the best interest of the U.S. (preventing spread of Communism), they were nevertheless in violation of the Boland Amendment and still illegal
@jedshug 8. In fact, much of the extensive congressional oversight over intelligence functions stems from things like Iran Contra -- you want to balance POTUS' foreign affairs/nat sec powers with transparency, individual rights (e.g., warrantless wiretapping after 9/11),and accountability
@jedshug 9. The ICWPA tries to balance these interests in the context of nat sec/classified information: It makes the whistleblower go to an independent entity (agency IG or ICIG) to basically "vet" the complaint and make sure it is urgent
@jedshug 10. The IG has to look at the complaint, determine that it is credible, and that it is urgent: That it is "[a] serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to to...an intelligence activity involving classified information"
@jedshug 11. I direct you to an excellent resource from @NatlSecCnslrs who wrote an excellent Q&A on the statute for @just_security here justsecurity.org/66211/qa-on-wh…
@jedshug @NatlSecCnslrs @just_security 12. Note that under the definition of "urgent," the complaint cannot simply be a difference in policy opinion. And the IG is an independent entity making the determination that it is serious enough to come to the attention of Congress
@jedshug @NatlSecCnslrs @just_security @EricColumbus 14. Sooooo...we're basically left with the fact that a Trump appointee, found this complaint to be "urgent," meaning that it is not merely a policy dispute, beyond the broad Art. II foreign affairs authority POTUS enjoys, and likely illegal -- and which Congress must look at
@jedshug @NatlSecCnslrs @just_security @EricColumbus 15. I will leave you with my evergreen piece on the two main issues the Framers were concerned about wrt to the POTUS: Self dealing and foreign influence
@jedshug @NatlSecCnslrs @just_security @EricColumbus Sorry, wrong link for my piece (but Eric's tweet is worth a second read! 😂) politico.com/magazine/story…
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