In a Sept. 17 letter to Schiff, Maguire’s general counsel, Jason Klitenic, said the whistleblower complaint was determined not to be an “urgent concern.”
The law did not require the director of national intelligence to forward it to Congress because it involved “conduct by someone outside the Intelligence Community and did not relate to any ‘intelligence activity within the responsibility and authority of the DNI,’ ” he claimed.
Klitenic also said the complaint involved “confidential and potentially privileged communications.” Disclosure would violate the president’s authority to control classified information and the whistleblower and inspector general were barred from sending the information directly to Congress, he said.
Can he do that?
The Intelligence Community Whistleblower Protection Act has no provision for what should happen if the inspector general determines something is of urgent concern but the director of national intelligence refuses to forward it to Congress. The scenario has never come up before.
But some legal experts say that, because the law doesn’t directly address this issue, it means the inspector general has the final say.
“The DNI cannot countermand the inspector general’s determination,” Jesselyn Radack, a national security lawyer known for her defense of whistleblowers, told The Post.
Here, though, there’s an additional complication: The director of national intelligence also consulted the Justice Department’s Office of Legal Counsel
Robert Litt, former general counsel to the Office of the Director of National Intelligence, explained in a piece published by Lawfare: “[Office of Legal Counsel] opinions are considered to be binding and authoritative interpretations of law within the executive branch. So if OLC in fact formally opined that this complaint was not an ‘urgent concern’ as defined in the statute, the DNI could take the position that the IG must follow that interpretation.”
What about the Trump administration?
Thus far, The Post reports, the White House has stopped short of asserting privilege over the complaint, though Klitenic suggested in his letter that it would try to prevent Maguire from complying with committee subpoenas.
https://www.washingtonpost.com/polit...what-law-says/
and
While the inspector general concluded that this allegation fell within the whistleblower law, the Justice Department has a good faith basis to reject his interpretation. That law is intended to address mismanagement, waste, abuse or a danger to public safety by intelligence officials. The president is the ultimate intelligence authority, and there is little support to argue that a discussion between world leaders should be viewed as a subject of this law. After all, any intelligence official could claim that a president undermined national interests in discussions with another world leader. Trump has been denounced, perhaps correctly, for disclosing classified information to foreign figures, but he has total authority to declassify information for a good reason, a bad reason, or no reason at all.
Even if the law is viewed as covering these allegations, there would be a massive potential court fight over executive privilege. A conversation between two presidents is the ultimate example of a privileged communication. Indeed, the first assertion of executive privilege by George Washington concerned foreign relations communications underlying the Jay Treaty. Executive privilege, however, is not absolute. Indeed, in Richard Nixon versus United States, the Supreme Court rejected the argument of the president after recognizing the privilege.
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