Listen: Lawmaker accuses Justice Department of blocking whistleblower disclosure
"On August twelfth a whistle blower father a whistle blower filed a complaint with intelligence community inspector general Michael act concerned who serves as the watch dog for the US intelligence community that he named was credible and urgent within the definition of the law The Washington Post reported last night that the complaint concerning communication between trump a foreign leader in which the president made some kind of promise. acting director of national intelligence just acquire has refused to turn over the complaint to Congress as is usually required by law today actions and declined to provide lawmakers on the house intelligence committee with details of the whistle blower complaint The New York Times reported that the complaint is said to involve multiple acts by trump not just one conversation with a foreign leader the president tweeted this in response to the reports quote another fake news story out there never ends virtually any time I speak on the phone to a foreign leader I understand that there may be many people listening from various US agencies not to mention those from the other country itself no problem knowing all of this is anybody dumb enough to believe that I would say something inappropriate with a foreign leader while on such a potentially heavily populated call I would only do what is right anyway and only do good for the USA joining us now to offer some insight into these reports and how all of this works is national security lawyer Brad mas he can follow on Twitter at Brad mosque he S. Q. Brad how are you. good right how you doing this evening good thank you so much for joining us so let's start with how normal intelligence community whistle blower complaint works something you've handled and no well and then we'll get to this specific situation sure so in a standard situation and what you would have is the individual which wrapped up whatever is the nature of the complaint they waited submitted to the inspector general of the intelligence community and the inspector general refuse that determinate the credible in qualifies it's what's called an urgent concerns and urgent concern being a lay great abuse of long that is not simply a public policy dispute and if the inspector general says yes this is credible he for that on to the director of national intelligence and a director of national intelligence send it to the intelligence committees that did not happen here so real quick what what generally constitutes these complaints sent to the inspector general. so could be any number of things that can be that they you know that there's a mid level manager miss using agency assets for personal use personal enrichment you can think of is systemic misuse of agency authority in terms of how an agency is managing surveillance powers and how they're submitting applications anything along those lines and how frequently do these complaints to the inspector general occur. they're not often this is not typically use thing any you're talking maybe it doesn't twenty at most of the year and most of them are not found to be credible. okay this one was found to be credible credible correct it it it got classified as urgent. yes correct it did and the more important part it apparently implicates a very senior level official if not the present United States court reporting so what makes this complaint then different from a normal complaint in terms of the steps that it would go through. so the problem here and this is what we've seen that with what happened in the subsequent Spahn it is the way the statue in the relevant statutes call the intelligence community whistleblower protection act the statute was not designed to address the situation in which the individual against whom the whistle is being blown was someone above the director of national intelligence or facing an unprecedented situation and so the problem that we are facing is how to handle it when the person is beyond the D. and icy profession okay so because everybody who's typically under the director of national intelligence once the D. and I received a complaint he would just take it to the house intelligence committee that would be the normal process be because this is somebody who's above the D. N. I. it's preventing him from doing that. that's what the justice department is apparently it by the end I could do so at the end I could have simply transmitted it but because the individual against him the whistles being blown was apparently the president he sought guidance from the justice department the justice department reviewed the complaint and said this does not fall within the mandatory obligation for you to transmit this to the intelligence committees because the president is not under your supervision and the purpose of this stature the purpose of the icy WPA with you give whistleblowers away to notify Congress and particularly the intelligence committees in particular the oversight entities yes the these oversight entities that we created in the aftermath of mixing to give them access to an understanding of the problems that are ongoing within the intelligence community not just to limit it to the executive branch itself here's the problem I have though if it stays within the executive branch whether it's at the department of justice and and the only people that know about it's the D. and IT inspector general department of justice all executive branch figures then you have no oversight. correct in that. it's about the president because the president oversees the department of justice. in the the difficulty we're facing here the struggle were facing is because the statute never envisioned that this type of factual scenario it didn't have the mechanism properly designed to address what did the and I should do and so the advice the legal advice that was given to the end I from the justice department had some legitimate basis based off a very narrow but still legitimate reading of the strict language of the statute and at that is that if it does not that the urgent concern only applies if it falls under the supervision of the D. and I and so this is this you know political no man's land facing. all past practice of the last twenty one years tells you this is how it's still possible to be done but your facing a scenario that you've never had before we're talking to national security lawyer Brad mossy can follow on Twitter at Brad mas E. S. Q. so the inspector general went before the intelligence committee today and didn't really say anything because he couldn't write that the director of national intelligence must've instructed him based on what the department of justice said not to reveal the complaint to Congress. so in a letter that came out shortly after RB inspector general's testimony included I believe was released by the house intelligence committee there was a letter from the specter general dated two days ago that outline that he had been repeatedly asking for authorization from the director of national intelligence to reveal at least some detail to the intelligence committee about what had gone on what was the nature of the disclosure even if it wasn't to be disclosing disclosing the complaint itself and at the end I had continued to refuse and until the IG has that authorization. he can't say anything and that's why you had what you had today where he could not. confirm anything he could not address any of the reporting now what power does Congress have to compel the D. and night to provide them the complaints that the whistle blower issue is there any recourse that Congress has. very little for the way Congress set up the statute no it didn't create any rate of judicial review or any private called the faction all it all they have the ability to do it actually everything. they could subpoena the director of national intelligence. I can testify in open session on next Thursday if he doesn't answer the questions they can hold them in contempt and they could refer him for transportation to the justice department which of course is not gonna do anything. they can try to use their own inherent authority you have the sergeant arms arrest him which of course they're not going to do they could sue. claiming that the year so their subpoena has been obstructed and try to compel disclosure but then becomes the legal debate in court over a very new wants to narrow piece of language in the link the statue for. they essentially try to define parts the deny as leverage which would be politically dangerous let me ask you this in terms of. god. a bread on just for a quick this is Felix Vega could the whistle blower themselves go directly to Congress. now so here is I own a copy out that under the terms of the I. T. W. P. eight it does not grant the whistle blower the authority on their own to just go to a member of Congress now there are those of us including myself who argue that they be visible or already has that authority to go to select committees like the intelligence committee get they have the necessary security clearances they have the relevant facilities that they should be allowed to go do that no one's ever been criminally charged that contact but if the whistle blower were to do that they would almost certainly be fired in the clear. is this a form is this some form of executive privilege basically that is being invoked here because it involves the president conversations that he had that apparently this was a blower was privy to that that is why the department of justice believes that it doesn't have to be turned over to Congress also at the moment it's only a classification issue that clearly been involved and that's why the I. T. W. P. A. this as a mechanism is because these are classified disclosures they're coming to Congress yes though this became a legal fight in court between the house intelligence committee and the president or the M. night there would be an issue indications of executive privilege because yeah this is something involving the president's communication we're talking a national security lawyer Brad mas here on PM Tampa Bay if the president wanted to because the president claims look there's nothing to see here if he wanted to he could immediately declassified a whistle blower complaint and make a public correct. course he cut which also course in the end says well wait a minute he's made clear he has no prom exercising that authority the with the NO a president has done yet he hasn't done that here despite all this media spectacle we've had for the last six days about what's going on here and now these reports suggesting he basically made some illicit promise to a foreign head of state why wouldn't he want to just the classified it and let the information come out well at the sixty four thousand dollar question only Donald J. trump after that year in DC you're in the middle of of the national security apparatus they're clearly somebody is leaking information now to the media about the complaint we learn that allegedly it involves now the Washington post is reporting the complaint about president trump involves Ukraine so that's a new report but we're learning that involves potentially conversation between the president and a foreign leader then we learned that it could be multiple incidents that are contained in this complaint so we'll be information do you think get out there anyway and how dangerous is that for people to leak are parts of this complaint. we'll be clear anybody who's leaking parts of that complaint at a moment after at a minimum they're risking have being fired and losing their clearances and depending on if parts of it are classified that they're leaking out they could also face criminal penalties that all being said yes it seems that the majority if not all of this complaint will eventually get leaked out. the only question is will it all be done before the actual verified details get provided the Congress or this one the situations with a whistle blower tried to do it right went through the process in the end because of obstruction from that the N. nine the White House is that gonna of actually be under cut in the very thing he or she was trying to keep quiet and properly report to Congress without leaking it to the public is gonna get leaked out anyway it's by other individuals with their own potential agenda and Brian terms of this statue just seems like it makes no sense. once again that there would not be a fail safe for anyone above the D. and I too you know there if someone did something wrong and basically blocks anyone above the D. and I from being reported to Congress and anyone finding out about this is this something Congress can change in the interim possibly or do they have to wait until you know that this is over with. all the I mean they could change it tomorrow but when applied to this situation necessarily unless the contact gently can't make it retroactive like that but I think the reason why they never contemplated applying this far higher level above that the N. nine there was some legislative debate arming Congress when they passed the original bill back in nineteen in the late nineteen nineties wise you ultimately at that higher level perfectly the president you're dealing with someone with so much discretion and so much inherent constitutional authority that it's very difficult to imagine that anything that would actually fall within the scope of a flagrant violation or abuse of law as opposed to simply dispute over public policy matter is opposed to someone who's more of a mid level manager just relying on what the delegated to them so there there there were there were been inherent constitutional Kanya tension with trying to apply this to the president I'm sure that something that would come up if they're all the litigation over this which is why it's never been applied to"