Whistling Truth to Power
Whether the President is a member of the intelligence community is a very big deal
The furor over the current U.S. president’s telephone conversation with the new Ukrainian president has two principal elements. In the long run, the element that seems least important may turn out to be the most important. By far.
First, the scandal — which has already led to the extraordinary response of the Speaker of the House of Representatives launching a formal impeachment inquiry — obviously concerns whether or not Mr. Trump abused his power by requesting/demanding actions from his Ukrainian counterpart that would be politically useful to Mr. Trump. With the release of the transcript of the call, and of the whistle-blower complaint that prompted all this in the first place, this element can now be judged on its own merits.
The second element, then, would seem to be moot: why the acting Director of National Intelligence declined to provide the whistle-blower’s complaint to Congress during the statutorily-required period. If we already have the complaint, and the transcript, does it matter any more why it took so long to get it?
And the short answer is yes, it matters enormously. Because there’s a crucial argument buried in this disagreement, and it has huge implications for the future power of the American presidency. In short, it’s this: can a U.S. president, any U.S. president, say whatever s/he wants to to a foreign leader, for any purpose whatsoever, without fear of domestic consequences? In other words, without fear of exactly the kind of reaction we are now seeing?
The law protecting whistle-blowers, which at first glance seems to protect malcontents with a disagreement or a grudge, actually protects the U.S. intelligence community. Because disagreements, and even grudges, happen on their own, and no one can stop that. The anonymous whistle-blower who revealed Mr. Trump’s conversation with the Ukrainian president clearly feels that Trump’s actions were harmful to the interests of the United States, and s/he expressed this concern through the established formal channels laid out by the Intelligence Community Whistleblower Protection Act of 1998, as amended in 2010 and 2014. This allows for the managed protection of state secrets, and for the protection of the whistle-blower him- or herself from possible reprisals like loss of security clearance or loss of position. (Those are the mild consequences.)
The alternative is unmanaged leaks to the press (like those of Edward Snowden or Chelsea Manning), in which information including state secrets is dumped en masse to organizations like WikiLeaks, and the leaker is either exiled (as in Snowden’s case) or imprisoned (Ms. Manning). (Those are the non-mild consequences.) Such leaks are a blunt instrument that can cause serious unintended harm, or even deliberate harm, as when Russian intelligence operatives co-opted WikiLeaks to affect the U.S. election of 2016 using hacked materials.
No one in government (or business, for that matter) likes to see information leak to the press, that’s a given. Since it happens anyway, the best alternative is to manage what can be a crucial check on unfettered power. That’s what the Whistleblower Protection Act aims to do. But to a politician whose interest is in fact unfettered power, there is a third alternative: intimidation. And that, at its heart, is what’s being argued about with relation to whether the U.S. president is or is not a member of the intelligence community.
Because if the argument prevails that the president is not, then the formal channels to manage whistle-blower complaints disappear (at least with regard to a president), and the only option left for any future complainant is the terrifying example of Snowden and Manning. What sane human being, with a life and loved ones, would not hesitate at the thought of such a fate?
It seems like an absurd argument: is the president a member of the intelligence community? Of course he is, most people would likely answer. The intelligence community, through the Director of National Intelligence (appointed by the president) and others, reports directly to the president. How then could anyone assert with a straight face that the president is not a part of that community? That he is not, in fact, the head of that community? But that is exactly what many are arguing, with a very straight face and with as much gravitas as they can muster. In one recent example, a New York Times opinion piece titled “Beware of Impeaching Trump. It Could Hurt the Presidency” by John Yoo (the man who wrote the torture memo that helped lead to abuses such as Abu Ghraib), the question of the president’s membership in the intelligence community is the crux upon which the remainder of his argument rests.
Mr. Yoo, and others, subscribe to what is called the Unitary Executive Theory. In a remarkable memo written just two weeks after the attacks of September 11, 2001, Mr. Yoo, in his capacity as then-Deputy Assistant Attorney General, advised President Bush that “Congress’s support for the President’s power suggests no limits on the Executive’s judgment whether to use military force in response to [the attacks].” [Emphasis mine.] So of course he believes impeachment could hurt the presidency. In an imperial, no-limits White House, any restriction would hurt the presidency.
In a 2011 Atlantic article, Garrett Epps laid out the history of the Unitary Executive Theory, explaining that under this theory, “members of the executive branch are solely accountable to the president alone, and the president, in turn, may order anyone who works in the executive branch to exercise his or her discretion in fulfilling any official function however the president personally thinks best.” It almost entirely discards the notion of checks and balances, asserting that a president, particularly in a time of war (and remember that we’ve been at war in Afghanistan for nearly twenty years), is vested with what amount to dictatorial powers. Under the Constitution a president enacts laws that are created by Congress; this has been abused since time immemorial by presidents who have used their interpretation of those laws to in effect rewrite or create laws of their own. Under the Unitary Executive Theory, a president would have the nearly unlimited power to do just that without check or hindrance. “In any crisis,” Epps writes, “[the theory] allows power to flow to the president; as crisis recedes, future presidents tend not to give it back.”
In the current crisis, Mr. Trump asked his Ukrainian counterpart to conduct an investigation that could lead to dirt on a political opponent, former Vice President Joseph Biden. But without the whistle-blower’s complaint, we would have no idea that such a request had ever been made. Congress would have no idea, either. (One must wonder how many similar instances might have gone unreported.) If the Whistleblower Protection Act is deemed to not apply to presidents, then it becomes much more unlikely that a whistle-blower would ever again dare to complain, since his/her only avenue of complaint would be an unmanaged leak to reporters or a third party like Wikileaks. And given the intimidating consequences of such leaks, presidents would feel emboldened to act with impunity, for what they deem the good of the nation or for their own personal gain. All without any consequences to them.
During an event at the United Nations on September 26, 2019, Mr. Trump said of the still-unknown whistle-blower and his or her sources, “You know what we used to do in the old days when we were smart with spies and treason, right? We used to handle it a little differently than we do now.” Intimidation doesn’t get any more blunt than that.
That same morning, during a House Intelligence Committee hearing with the acting Director of National Intelligence Joseph Maguire, Admiral Maguire repeatedly leaned on the notion that President Trump is not a member of the intelligence community, and that therefore the whistle-blower’s complaint need not have been shared with Congress. We now have the complaint, so the entire hearing perhaps appears to have been another pointless exercise in partisan finger-pointing. (Certainly the Republicans on the committee asserted as much.) But the consequences of that argument are very real and very worrisome, regardless of what happens to this specific president.