As the core allegations in the anti-Trump whistleblower complaint continue to unravel, it is becoming clear House Democrats are willing to dismiss the rule of law to sully President Trump with impeachment ahead of the 2020 elections. Their pattern of weaponizing unsubstantiated allegations for political hit jobs because they play well in the media’s scandal-driven 24-hour news cycle is symptomatic of wider dysfunction.
Lost in the recent arguments about the extent to which the intelligence community inspector general (ICIG) was seeking to protect the optics of his credibility determination or how much coordination may have occurred between the whistleblower and Rep. Adam Schiff’s committee is the simple question of whether Congress should have been allowed to force the release of classified information and foreign policy secrets through the manipulation of the whistleblower laws in the first place.
This argument is quickly dismissed by the president’s detractors as an attempt to focus on the process and not the substance. But seeing that there is so little legal substance to the allegations in the complaint, it is appropriate to address how we got here.
Democrats Demand Checks, But Provide Little Balance
Democrats’ framing of the impeachment proceedings as just checks and balances appears intentional to obscure the fact they are demolishing traditional limits on checks and balances that respect the separation of powers inherent in Constitution. Historically, the executive branch has steadfastly defended its right to control classified information and execute foreign policy under Article II authority granted to the president in the Constitution.
The whistleblower statutes represent rare areas where the executive has ceded some incremental oversight authority to the legislative branch to assure the American people that operations and activities conducted in secret on our behalf will have some accountability. But looking to the legislative history of these statutes, we can see an executive branch consistently seeking to minimize the extent to which Congress can peer into the activities of the president.
Clinton and Obama Resisted More Congressional Oversight
On October 7, 2010 President Obama signed the Intelligence Authorization Act for fiscal year 2010, which established the ICIG. In his signing statement he reiterated the “President’s authority to protect sensitive national security information” and saw fit to highlight the expectation that the law required a “report to congressional committees regarding investigations focused upon certain current or former IC officials” (emphasis added).
He further emphasized that he understood the whistleblower protection provisions “consistent with President Clinton’s stated understanding of a provision with substantially similar language in the Intelligence Authorization Act for Fiscal Year 1999.”
Clinton’s signing statement was far more forthright: “The Act does not constrain my constitutional authority to review and, if appropriate, control disclosure of certain classified information to the Congress. I note that the Act’s legislative history makes clear that the Congress, although disagreeing with the executive branch regarding the operative constitutional principles, does not intend to foreclose the exercise of my constitutional authority in this area.” He further highlighted, “the Constitution vests the President with authority to control disclosure of information when necessary for the discharge of his constitutional responsibilities.”
Clinton also saw fit to emphasize what was left out of the final law, “Finally, I am satisfied that this Act contains an acceptable whistleblower protection provision, free of the constitutional infirmities evident in the Senate-passed version of this legislation.” What were those “constitutional infirmities” in the Senate version derided by President Clinton, who had threatened to veto the bill if they weren’t removed?
The Senate initially proposed an entire section, entitled “ENCOURAGEMENT OF DISCLOSURE OF CERTAIN INFORMATION TO CONGRESS,” which would have authorized any employee or contractor of an intelligence agency to disclose to congressional oversight committees any information, regardless of classification, that “an employee reasonably believes to provide direct and specific evidence of violation of any law, rule, or regulation; a false statement to Congress on a material fact;” or fraud, waste, and abuse.
The only information the Senate sought to exclude from its expansive grab of power was grand jury testimony. While the Senate may have been fine with grossly expanding the powers of the legislative over the executive, President Clinton was right to push back on this, and ultimately prevailed.
It is important to note that both presidents were asserting their executive authority in the specific context of Congress’ ability to oversee executive branch operations through the whistleblower statutes. Neither president could have imagined he was authorizing Congress to receive classified whistleblower reports related to his own conduct, especially as it pertains to foreign policy.
President Trump would have been well within his constitutional rights to withhold this complaint in its entirety, but the illegal and coordinated leaking of classified information and subsequent media pressure forced his hand. While his unprecedented transparency on this topic has demonstrated that there is no “there” there, the president’s detractors still maintain his conduct—legal, and well within the bounds of his constitutional authority—is still somehow impeachable.
Pelosi Pushes Toward Constitutional Crisis
This week House Speaker Nancy Pelosi accused the president of saying his Article II powers mean “I can do whatever I feel like.” Of course he never said any such thing, but the Constitution does provide him substantial leeway to conduct his duties, and private diplomatic negotiations and other communications of the president have been generally recognized as the executive’s inviolable right to keep private—until now.
The tug of war between the branches regarding access to information the executive branch has deemed classified will likely continue well past this imbroglio, but if you anticipate placing a wager, it is likely best to bet on the executive prevailing based upon current jurisprudence related to separation of powers.
Since the Supreme Court’s 1988 decision in Department of the Navy v. Egan—ironically a case about the executive branch’s authority to determine who may be entrusted with classified information—the courts have consistently held that the areas of foreign relations and national security require considerable deference to the executive, with some decisions going as far to suggest the executive’s decisions in these areas are not even subject to judicial review.
That being said, it should be remembered that impeachment is an inherently political process, not a legal one. That reality makes it dangerous and unpredictable territory for the nation. But conforming to the basic contours of the Constitution, including honoring separation of powers for a president you may not like personally, is still necessary if we are to continue as a nation of laws.
The president and others have characterized the latest saga as a coup attempt. If the definition must include blood in the streets and the flag of the opposition rising above the capitol, then no, it is not a coup. But if coup includes an attack on the foundations of the republic, attempting to shatter long-established limits to the powers distributed among the three branches through abuses of the system and mob rule, well, the president makes a pretty good point.