Steve Vladeck; Op Ed: Trump’s Ukraine whistleblower scandal sets a dangerous DOJ legal precedent

Acting Director of National Intelligence Joseph Maguire
Brendan Smialowski / AFP – Getty Images

But we also learned Wednesday that Maguire’s refusal to forward the complaint to Congress was based upon a formal opinion rendered by Steven Engel, the politically appointed head of the Justice Department’s Office of Legal Counsel (OLC). The arguments it advances are downright scary.

Even if the OLC was right and the ICIG was wrong about whether the complaint involved an “urgent concern” (and there are good reasons to side with the ICIG), there are still three different problems with the OLC’s conclusion. First, the text of the intelligence community whistleblower law doesn’t remotely support it. 50 U.S.C. § 3033(k)(5)(C) is mandatory — once the ICIG transmits a complaint he finds credible to the director of national intelligence, “the director shall, within 7 calendar days of such receipt, forward [the complaint and the ICIG’s evaluation thereof] to the congressional intelligence committees, together with any comments the director considers appropriate.”

But, as explained above, the director of national intelligence is not the arbiter of whether a whistleblower complaint meets the relevant statutory criteria; the ICIG is. Put another way, Congress gave the decision-making authority in this case to the ICIG, not to the acting director of national intelligence — or the OLC for that matter.

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