More Than 50 Federal Watchdogs Sign Letter Condemning OLC Decision That Allows White House Counsel To Unilaterally Block Whistleblower Reports

Legal Issues

from the administration-consolidating-power dept

The whistleblower report implicating President Trump in a quid pro quo exchange of US military aid for promises to investigate a political rival has been very illustrative of the dangers of whistleblowing. Laws and policies mean next to nothing when the proper channels are willing to bury reports and possibly the reporter.

The president himself has called for the whistleblower to be unmasked. The Office of the Director of National Intelligence unilaterally decided this whistleblower report didn’t need to go any further than its unfriendly confines. This decision was made despite the allegations containing matters of “urgent concern:” foreign interference in a US election.

The ODNI got the back up it needed from the White House. The Office of Legal Counsel sided with the administration and claimed the content of Trump’s call with Ukraine president Volodymyr Zelensky wasn’t “concerning” enough to be forwarded to Congressional oversight by the ODNI.

The Inspectors (plural) General disagree. A letter [PDF] sent to the Office of Legal Counsel — signed by more than 50 IGs from dozens of federal agencies, including the DOJ, NSA, CIA, and State Department — says the OLC’s opinion is not only wrong but potentially seriously damaging.

We… share the ICIG’s concern that the OLC opinion could seriously impair whistleblowing and deter individuals in the intelligence community and throughout the government from reporting government waste, fraud, abuse, and misconduct. Whistleblowers play an essential public service in coming forward with such information, and they should never suffer reprisal or even the threat of reprisal for doing so.

How does the OLC’s opinion make things more dangerous for whistleblowers? By taking away the IG’s authority to independently review complaints containing “urgent concerns” and forward those to Congress if they involve members of the Executive Branch. The OLC wants to place itself between the IG and Congress, and to make the final call on whistleblower reports, which shifts all the power to the Executive Branch and makes it highly unlikely anything targeting White House officials will ever make its way into the hands of Congressional oversight.

It would be wholly inconsistent with the IG Act, and undermine IG independence, if the agency head – instead of forwarding the IG’s concerns to Congress as the law requires – sought OLC’s advice so that OLC could consider, and then potentially secondguess, the IG’s determination (a) that the problem, abuse, or deficiency was a “serious” or “flagrant” one, or (b) that it related to the administration of agency programs and operations.

The letter points out allowing the OLC’s determination to stand creates a closed loop where the Executive Branch polices itself. This was undoubtedly the OLC’s intention because it’s highly unlikely it simply made a mistake of law.

In this matter, OLC did not find that production to Congress was limited due to a valid constitutional concern. Rather, OLC substituted its judgment and reversed a determination the statute specifically entrusted to the ICIG because of its independence, objectivity, and expertise to credibly assess the information. […] Further, the opinion potentially creates space for agency heads across government to make their own determinations related to IG jurisdiction or reporting. Such a result would be contrary to IG independence and congressional intent in requiring IGs to maintain independent legal counsel and may impede the ability of Congress and taxpayers to obtain the objective and independent oversight they rely on from IGs.

When the most powerful part of the government becomes a law unto itself, everyone loses.

[T]his concern is not limited to the intelligence community but will have a chilling effect that extends to employees, contractors, and grantees in other parts of the government, who might not consider it worth the effort and potential impact on themselves to report suspected wrongdoing if they think that their efforts to disclose information will be for naught or, worse, that they risk adverse consequences for coming forward when they see something they think is wrong.

If this had only been signed by a couple of IGs who worked regularly with the ODNI, it might have been easy to write this off as the efforts of a few aggrieved watchdogs whose toes had been stepped on. But it’s signed by IGs from all over the federal government, indicating that almost everyone this OLC opinion effects disagrees with it. If it stands, whistleblowing will become more difficult than it already is. When the power shifts in DC, it won’t improve things for whistleblowers. It will only change the party affiliation of the administration benefiting from this decision.

Filed Under: congress, inspectors general, odni, olc, transparency, whistleblowers, whistleblowing