Before the acting director of national intelligence decided to stonewall Congressional requests to see a mysterious whistleblower complaint deemed “urgent,” he reportedly took the highly unusual step of seeking guidance from the White House and Justice Department Office of Legal Counsel.
Acting DNI Joseph Maguire’s decision not to share the substance of the complaint with Congress aligns with a long-held legal theory of Donald Trump’s attorney general, William Barr, who spent decades advocating that the executive branch should control what information Congress receives.
The Inspector General of the Intelligence Community is required by law to report all claims to the DNI when the “complaint or information appears credible.” The DNI is then supposed to transmit the complaint to Congressional intelligence committees within seven days.
The complaint reportedly “centers on Ukraine” and a “promise” Trump made in the course of his communications with a foreign leader. On Friday, the Wall Street Journal reported that Trump pressed Ukrainian President Volodymyr Zelensky “about eight times” to investigate Joe Biden’s son Hunter Biden.
House Democrats were already looking into whether Trump and his lawyer Rudy Giuliani had pressured Ukraine to intervene in the upcoming U.S. presidential election by launching an anti-corruption investigation of Hunter Biden, who served on the board of directors of a Ukrainian Energy company. Giuliani admitted in a CNN interview Thursday that he asked Ukrainian officials to investigate Biden.
Trump denied doing anything inappropriate, noting that many members of the intelligence community and other government entities listen to such calls. “[I]s anybody dumb enough to believe that I would say something inappropriate with a foreign leader while on such a potentially ‘heavily populated’ call,” he tweeted.
It is unclear how – or whether – the attorney general himself has weighed in on the question of what to share with Congress. But the situation carries echoes of his decades-long legal crusade to shield the executive branch from outside scrutiny. Throughout his career as a government attorney, Barr has been a leading proponent of what is known as the “unitary executive,” a legal theory under which the president has near absolute constitutional authority over the administration of the executive branch.
In 1989, when Barr was the head of the Justice Department’s Office of Legal Counsel, he wrote a memo outlining common practices that he called “attempts to intrude into the functions and responsibilities assigned by the Constitution to the executive branch.” One such practice, he wrote, was passing laws that automatically require the transmission of information to Congress, a practice that Barr’s memo said was “preventing the President from exercising his constitutionally guaranteed right of supervision and control over executive branch officials.”
Barr wrote that “such provisions infringe upon the President’s authority as head of a unitary executive to control the presentation of the executive branch’s views to Congress. Accordingly, such concurrent reporting requirements should be opposed.” The example he cited involved situations in which Congress wanted to see budget requests that were concurrently sent to the White House Office of Management and Budget, not Inspector General investigations, but his point was clear: Congress should not have any control over what information the executive branch shares with them.
In the decades after Barr’s memo, the executive branch continued to maintain that it should retain final control over how and whether classified information can be sent to Congressional committees. A 1996 memorandum from the Justice Department’s Office of Legal Counsel says that Congress cannot “divest the President of his control over national security information” by allowing government employees to “furnish such information to a Member of Congress without receiving official authorization to do so.” But Congress has never subscribed to that legal theory.
Prior to his confirmation as Attorney General, Barr also sent an unsolicited memo to then Deputy Attorney General Rod Rosenstein, arguing that special counsel Robert Mueller’s obstruction of justice investigation was “fatally misconceived.” And in the weeks before the Mueller report cleared declassification review and was released publicly, Barr issued a highly misleading summary that falsely claimed the report did not “draw a conclusion” as to whether certain actions by Trump constituted obstruction of justice.
On Friday, House Intelligence Committee chair Adam Schiff said he would pursue an investigation of the whistleblower’s complaint “come hell or high water.”
“This involves something more sinister, something involving a serious or flagrant abuse or violation of law or misappropriation,” Schiff said. “The IG underscored the seriousness of this, and also that this needs to be looked into. And right now, no one is looking into this.”