We were promised a Hollywood-style, smoking gun quid pro quo. But after the transcript was released, the whistleblower complaint came out, and the House Intelligence Committee grilled acting Director of National Intelligence Joseph Maguire, leaving most people with glazed-over expressions, wondering what the big deal is.
Allow me to break down for you exactly what happened: Chairman Adam Schiff attempted to play word games with Maguire in an effort to manipulate the situation and paint the intelligence community and the White House as covering up something really, really bad that President Trump must have done.
Even into hour three of the hearing, Schiff was still asking Maguire whether an investigation should occur. Maguire simply said, “The horse has left the barn. You have all of the information,” and went on to specify every document Congress has.
So why the manipulation? Because the Democrats know their case is weak. Their only hope lies in trying to twist legal terminology for their political advantage.
For America’s benefit, here are the relevant legal terms used in the hearing, and what they actually mean, in context:
“Credible allegation”
Schiff attempted to make a big deal that the Intelligence Community Inspector General determined the whistleblower had made a “credible allegation.” Legally, this simply means that the whistleblower is in a position where he or she could be believable. It does not mean there has been any determination as to the truth or fact of the allegation.
For example, if an employee makes a claim against their employer, the complaint is considered credible as long as the accuser is an employee of that company. In other words, it’s merely possible that the claims made in the allegation are accurate. Schiff tried to pretend the term “credible allegation” means that there must be fact or truth to the underlying assertions, but that’s simply not the legal definition.
“Whistleblower protection”
Schiff attempted to coerce Maguire into stating that the intelligence community is refusing to bring forth the whistleblower as a witness. This is analogous to claiming an attorney is hiding information when he refuses to bring forth his client to testify. This isn’t the attorney’s call, because the privilege of legal protection belongs to the client alone. Only the client can waive it, and in this case the client is the president of the United States.
Similarly, since whistleblower laws are explicitly designed to protect the whistleblower’s identity and prevent possible retaliation, Maguire legally cannot waive that privilege and protection for the whistleblower.
“Whistleblower operating in good faith”
“Good faith” is a legal term meaning “fair dealing.” All this means is that there is no evidence yet that would allow Maguire or the inspector general to determine that the whistleblower came forward maliciously or out of bias. Democrats, however, want people to believe that “good faith” refers to the whistleblower’s intentions.
There was talk of the whistleblower’s suspected anti-Trump bias during the hearing, but Maguire was careful not to characterize the whistleblower because legally, the Whistleblower Protection Act forbids it at this stage. Remember, the point of protecting whistleblowers is to encourage transparency in government action, which Maguire referenced.
“Urgent concern”
Schiff tried at one point to equate this specific legal term with its colloquial meaning. When you or I normally use the term “urgent” in daily life, we aren’t using a legal definition. But Maguire repeatedly told Schiff that in this context, whether or not a complaint meets the legal definition (thus requiring transmission to Congress within seven days) is an objective, legal standard.
Schiff tried to paint the lack of transmission within the seven-day time period as somehow indicating a massive cover-up, but this was government working exactly how it’s supposed to.
“Executive privilege”
Schiff opened his questioning by trying to force a timeline on Maguire’s actions that suggested Maguire went to the White House “first” as some sort of conspiracy to cover up the whistleblower’s complaint. As Maguire repeatedly explained (and Republican Devin Nunes helpfully allowed him to clarify later), when the substance of the complaint involves executive privilege, Maguire does not have the authority to waive that on behalf of the president.
Again, the president is the exclusive holder of that privilege. Maguire was clear that when Trump decided to declassify the transcript of his conversation with Ukrainian President Volodymyr Zelensky (which he has the authority to do), it gave Maguire the authorization to provide the whistleblower complaint to Congress.
Executive privilege exists not so that the president can hide things, but because the president is obviously involved in very sensitive duties on behalf of the country, and must be able to do his job. Similarly, attorney-client privilege exists so that the attorney can do his or her job as a trusted resource and a client can communicate openly and honestly. Both can be waived in favor of disclosure and transparency.
Trump has been fully transparent, which is especially admirable since the law didn’t require him to declassify the transcript or the whistleblower complaint.
Maguire’s responses were non-partisan and accurate, despite Democrats’ repeated efforts to trick him into corroborating their absurd conspiracy theories. Schiff should go back to playing word games like Scrabble and leave the law to more competent people.
Jenna Ellis Rives (@JennaEllisRives) is a member of the Trump 2020 Advisory Board. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution.
