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‘It’s Not Fake News’: Legal Experts Erupt as Trump Dismisses Whistleblower Complaint


The Washington Post, definitely among one of President Donald Trump’s least favorite news outlets, published a story on Wednesday night that made tremendous waves. The president’s Thursday response sparked a lot of commentary and rapid reaction among legal experts.

The story regarded a whistleblower complaint that “triggered a tense showdown between the U.S. intelligence community and Congress.” According to WaPo, that complaint involves a “promise” Trump made to an unknown foreign leader that was deemed “so troubling” that an unnamed whistleblower filed a complaint with the U.S. intelligence community’s inspector general — a complaint the IG “determined […] is both credible and urgent,” per House Intel Committee Chairman Rep. Adam Schiff (D-Calif.). It’s also a complaint Acting Director of National Intelligence (DNI) Joseph Maguire declined to hand over to Congress. It’s also a complaint that the Department of Justice’s Office of Legal Counsel (OLC) advised Maguire to withhold.

President Trump reacted to the story on Thursday by calling it “Fake News,” and dismissing as “dumb” anyone who believed something “inappropriate” had occurred. The tweets when combined:

Another Fake News story out there – It never ends! Virtually anytime I speak on the phone to a foreign leader, I understand that there may be many people listening from various U.S. 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!

These tweets were not received well.

It’s not “fake news.”

Steve Vladeck, a professor at the University of Texas School of Law, said that three key aspects of the reporting were “not fake news”: 1) that the whistleblower complaint exists; 2) that the IG concluded the complaint was “credible”; 3) that the DNI did not forward the complaint to congressional intelligence committee.

Vladeck noted earlier — and others have highlighted this as well — that for this matter to “qualify as an ‘urgent concern’ under the Intelligence Community Whistleblower Protection Act, 50 U.S.C. § 3033(k)(5)(G),” the IG “had to conclude that the complaint identified conduct that meets the following statutory definition.”

This was the statutory definition Vladeck and other legal scholars pointed to:

A chilling effect?

National security lawyer Mark S. Zaid, who frequently represents whistleblowers but not this whistleblower, said that the way this was handled by the Office of the DNI is “undermining the existing [whistleblower] protections” and is “contributing to potential future harm to our [national security].”

CNN law enforcement and national security analyst, former FBI agent Josh Campbell, argued that the White House’s “obstructi[on] [of] alleged reports of abuse” will have a chilling effect on whistleblowing in the future.

Another protracted legal slugfest on the horizon?

CNN legal analyst and attorney Ross Garber suggested that this may be yet another situation “in which the directive of a statute (here that Congress be alerted to certain whistleblower complaints) may conflict with the Executive Branch’s assertion of its Constitutional powers and privileges.”

He, and others, noted that the Obama Administration took the same Executive Branch position.

In closing, Garber said that if Congress takes this to court, which we have seen time and again, it would be on “very shaky ground given that the information it is seeking relates to the President’s authority to conduct diplomacy and almost certainly will be considered diplomatic, national security, and/or military in nature.”

Other commentary:

[Image via Jeff J Mitchell, Pool /Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.