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The Problem With The Whistleblower System

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“It’s one of the biggest frustrations—that the people you’re blowing the whistle on have so much say over this,” David Colapinto, a founder and general counsel of the National Whistleblower Center, told me.

This summer, according to news reports, a member of the U.S. intelligence community lodged a whistleblower complaint with the intelligence community’s inspector general, Michael Atkinson. It referenced Donald Trump’s communications with a foreign leader, reportedly the president of Ukraine, and a promise he may have made. (The Wall Street Journal reported yesterday that during a July phone call, Trump repeatedly pressed Ukraine’s president to pursue discredited corruption allegations surrounding the business dealings of Joe Biden’s eldest son in the country. There was no quid pro quo discussed during the conversation, according to the report. Trump has dismissed the complaint and the news storm surrounding it as “ridiculous” and “partisan,” and has denied wrongdoing.) Atkinson reviewed the complaint, and deemed that it was credible and met the whistleblower statute’s definition of urgent concern. He then passed it to Trump’s acting director of national intelligence, Joseph Maguire. And that’s when the process ground to a halt.

Maguire was supposed to pass the complaint to Congress. Instead, he has held onto it after consultations with the Justice Department, arguing that the complaint may contain privileged communications. The controversy first came into public view last week, when Adam Schiff, the Democrat who heads the House Intelligence Committee, revealed that Maguire was refusing to send the complaint his way.

Maguire’s argument is on shaky legal ground. But it points to a problem: It’s hard to get around the authorities.

For instance, whistleblowers from the intelligence community could go directly to Congress with their concerns, but in doing so they would lose whistleblower protections afforded to them under the law. They could be fired, for example, or demoted, or lose their clearance. They could be outed.

If there is a case of reprisals against the whistleblower by their superiors, meanwhile, then the case is decided by the DNI. Such cases are full of legal and administrative hurdles and can take years to play out. “So the very agency that is being accused of the misconduct sits as the prosecutor, judge, and jury, so to speak, on the whistleblower’s retaliation case,” Colapinto said.

Advocates and lawyers have in the past raised two potential remedies to this problem: Create a legally protected channel for whistleblowers to go to Congress on their own, or a way to let their complaints reach federal court. Neither has been adopted into law, however.

The recent complaint, Colapinto told me, shows why the congressional outlet for whistleblowers is so important. Ideally, he said, their complaints could be brought directly to the House and Senate Intelligence Committees, whose members hold security clearances and are well versed in dealing with classified material. “They are perfectly … capable of handling classified information. That’s how they’re set up,” he said. “They do it all the time.”

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