Saturday, September 21, 2019

AG Barr and Trump are setting up an authoritarian power grab to kill the whistleblower inquiry

WASHINGTON, DC - MAY 22: U.S. President Donald Trump (R) and Attorney General William Barr arrive together for the presentation of the Public Safety Officer Medals of Valor in the East Room of the White House May 22, 2019 in Washington, DC. Comparable to the military's Medal of Honor, the Medal of Valor was established in 2000 by President Bill Clinton. (Photo by Chip Somodevilla/Getty Images)
Although the acting director of national intelligence was advised by the Justice Department that he couldn't share a whistleblower complaint concerning Donald Trump with Congress, the Office of Legal Counsel (OLC) opinion justifying that logic is still nowhere to be found.

During a Thursday press conference, House Intelligence Committee Chair Adam Schiff made a point of saying the opinion had not been shared with his panel yet. 

Instead of an actual legal opinion, all that has been disclosed about the administration's reasoning for withholding the urgent complaint from Congress is the basic framework that the complaint did not fall within the bounds of activity covered by the Whistleblower Protection Act.

In a Sept. 17 letter to Schiff, the intelligence community inspector general, Michael Atkinson, said the rationale he had received from the general counsel for the Office of the Director of National Intelligence was that the complaint "did not concern allegations of conduct by a member of the Intelligence Community or involve an intelligence activity under the DNI's supervision." 

Atkinson went on to say that although he considered himself to be "bound" by that determination, he also strenuously disagreed with it. "Particularly," he wrote, "that the disclosure in this case does not concern an intelligence activity within the DNI's authority, and that the disclosure therefore need not be transmitted to the congressional intelligence committees."

Atkinson said he took issue with "DOJ's analysis of the facts" and that, in his view, the complaint not only fell within the DNI's jurisdiction, but is indeed inseparable from it, relating to "one of the most significant and important of the DNI’s responsibilities to the American people.”

Whatever the OLC argument is—and we still don't know what it is—we should understand exactly what Attorney General William Barr and the White House are doing here. They are trying to prevent the whistleblower from using the formal channels laid out in the Intelligence Community Whistleblower Protect Act (ICWPA), leaving them and perhaps anyone who aids them open to prosecution for unlawful disclosures. (Contrary to popular belief, the ICWPA doesn't include protections for whistleblowers; it only lays out a mechanism to put forward a complaint to the congressional intelligence committees.)

Certainly, that is a piece of why IG Atkinson is treading so carefully, even though the law gives inspectors general sole discretion over whether a complaint is credible or whether it pertains to an urgent concern.

At base, Barr and the White House are applying maximal intimidation in order to keep the complaint from going public. And if it does go public in any sort of credible way (i.e., with a name attached to it), Barr and Trump will then have a self-fabricated foil in arguing that the disclosure wasn't legal. That will allow them to divert attention away from Trump's misconduct and instead create an argument over whether he has been unlawfully wronged.

In other words, this is all a diversion tactic, but it's a very dangerous one. Barr is both wily and lawless. He clearly cares nothing for the American people, but rather works in sole service of preserving presidential power—even for a president like Trump.

If Barr succeeds in either killing the disclosure or making this scandal a question of whether the law was followed in the course of disclosing the complaint, he could easily muddy the discussion and upend any momentum toward the removal of Trump from office. And building an authoritarian regime is about chipping away at democratic guardrails one at a time until they no longer exist.

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