House Intelligence Committee Chairman Adam Schiff and numerous of his Democratic committee colleagues shamefully smeared the acting director of national intelligence, Joseph Maguire, in Thursday’s whistleblower-related hearing.
Rather than acknowledge the obvious, that Maguire has been navigating complicated legal seas, and rather than appreciating Maguire’s more-than-significant attempts to coordinate with the committee, they browbeat him for delaying for mere weeks the delivery of a whistleblower report that is, as of this morning, fully public.
Rather than focus on the substance of this now-public complaint, they repeatedly impugned the integrity of a career-long nonpartisan public servant, Maguire, who brought the existence of the complaint to their attention in the first place. Their behavior was illogical and unfair.
At issue was why Maguire briefly delayed the transmittal of the report of the inspector general of the intelligence community regarding the whistleblower complaint. The applicable law governing such reports says that if the inspector general finds the complaint (in legal terms) both “urgent” and “credible,” the director of national intelligence “shall” transmit it to the intelligence committee within seven days. Yet, as has been exhaustively explained in multiple forums, the “shall” was not so simple this time.
First, the report involved behavior of the president of the United States, who is not technically within the “intelligence community” and thus not obviously subject to this inspector general’s purview. Second, the White House asserted “executive privilege” over the report. At least initially, a member of the executive branch is ethically and perhaps even legally bound to defer to an executive privilege claim — he certainly can’t just ignore it.
Like many others, I believe that executive privilege applies to a far narrower range of material than almost every recent president has asserted. But even then, we recognize that an official who defies it from the start could find himself in a legal bind. Unless there is something of earth-shaking time-sensitivity involved, any official informed that his material is covered by executive privilege has an obligation to comply with the claim at least until the political branches have had time to haggle over it.
It also is axiomatic that the president’s privilege claims are at the strongest in matters relating to diplomacy and national security. This case involved a presidential phone call with a foreign president. It contains discussions between the two about other foreign leaders. A claim of executive privilege in such circumstances is presumptively valid, even if later analysis unearths reasons to overcome the presumption and compel the information’s release.
Plenty of executive branch officials, including Reagan-era Environmental Protection Agency chief Anne Gorsuch (mother of current Supreme Court Justice Neil Gorsuch), have endured threats of jail time because they honored privilege claims against congressional inquiry. Congressmen act as bullies if they refuse to recognize the bind in which a privilege claim puts such officials.
In this case, Maguire had taken over as acting director of national intelligence just two weeks before the inspector general report crossed his desk. Because of the oddity that it involved the president himself, he rightly asked the Justice Department’s Office of Legal Counsel for guidance. Provided guidance that precluded immediate disclosure to Congress, he proactively did the next best thing: He alerted Congress to its existence while informing them that the privilege claim precluded its immediate release.
This is precisely how a good public servant would handle conflicting orders: follow ordinary procedures in securing guidance and obeying that guidance, while inviting the elected branches to work out solutions.
For Schiff and his colleagues to repeatedly castigate Maguire for doing just that is for them to focus their ire on an entirely innocent public servant, in contravention of common decency.
