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When “Shall” Doesn’t Mean “Shall” – the Director of National Intelligence’s refusal to hand over whistleblower complaint undermines executive branch accountability, reports Constantine Cannon’s Harry Litman in The Washington Post and MSNBC.

Posted  September 18, 2019

Whistleblowers, inspectors general, and congressional oversight all serve the purpose of keeping the executive in-check and accountable, says Harry Litman, who was featured on MSNBC, in The Washington Post, and elsewhere for his take on the unprecedented refusal of the executive to produce material for congressional oversight.

A whistleblower submitted information to the intelligence-community inspector general, who determined the complaint was credible and of “urgent concern.”  The law requires that the Director of National Intelligence “shall” provide the whistleblower disclosure to congressional intelligence committees within seven days, but the DNI has refused to do so on the grounds that it concerns “conduct by someone outside of the Intelligence Community.”

On MSNBC’s Deadline — White House, Litman explains that there is “zero” legal justification for resisting request and that the excuse offered is “tissue thin.”  He surmises that the unprecedented blanket-rejection is a ruse to force a court battle and buy time.  It is Congress’ role, he says, to be involved and to coordinate with the intelligence community in urgent and credible complaints of serious wrongdoing such as this, particularly if the executive cannot be trusted to police itself.

Litman writes in The Washington Post that whistleblowers and congressional oversight are needed “to bring information on possible abuse or unlawful conduct to actors outside of direct executive-branch control.”  He laments that instead, “What’s happening is much more base and basic: Conceal possible misconduct however they can, for as long as they can, simply because they can.”

Litman’s comments resonate with those in the whistleblower community.  Whistleblowers often agonize about coming forward, sometimes at risk to themselves.  When they choose to do so, often it is because the wrongdoer is concealing and lying about misconduct that is serious or even harmful.  The whistleblower wishes to expose and stop the behavior, and to hold the wrongdoer accountable.  When a whistleblower complaint is mishandled or ignored, as may have been the case here, the whistleblower may turn to other means of disclosure to attempt to reveal and stop the malfeasance.

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Tagged in: CC Lawyers, Importance of Whistleblowers, Whistleblower Eligibility,


1 Reply to When “Shall” Doesn’t Mean “Shall” – the Director of National Intelligence’s refusal to hand over whistleblower complaint undermines executive branch accountability, reports Constantine Cannon’s Harry Litman in The Washington Post and MSNBC.

  • Craig Brueckman says:

    Extremely difficult to assess propriety of what is going on since it involves the intelligence community and classified matters. However, given that the President is the Commander-in-chief and ultimate classification authority, his decision to discuss a matter, disclose information or make a promise is well within his purview. What has been released about the allegations – a promise made by Trump to a foreign leader, via phone call – sounds like a questionable whistleblower complaint.

    Given the documented hostility toward the President by certain members or factions of the intel community, it is not beyond the realm of reasonable possibility, that the allegation is spurious, yet deemed “urgent” by the intel IG. All the more reason to proceed with caution & discretion, not played out in an anti-Trump media.

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