Host this whistleblower complaint that became public, at least the existence of the complaint are you involved in that at all . Guest no. Host what this complaint has shed some light on is there is a difference between whistleblowers in the Intelligence Community and the laws and rules they have to operate under and whistleblowers in the rest of the federal government. Can you explain why that is and what rules they have to abide by . Guest sure. The most basic difference is employees in the Intelligence Community deal with classified information and that needs to be protected. There are secrets, et cetera. That doesnt mean employees who work in the intelligence ormunity dont see fraud misconducts or violations of laws. There needs to be a system in place for all federal employees weather you work in the regular secret service or the Intelligence Community to report misconduct when it occurs. Host in the Intelligence Community, obviously we are trying to find out the information and what is in this complaint. How is this process supposed to work . Host there are two different phases. The first is the disclosure phase, which is where we are at right now with this Intelligence Community whistleblower who filed a complaint and there are two ways to make complaints. You can go internal and you can exercise your regular rights within the Intelligence Community to report up the chain of command that you observe violations of law rules, abuse of authority, gross waste, gross mismanagement, et cetera. There is a special provision in the law given the significance of the Intelligence Community and intelligence agencies to report to request a whistleblower concern be reported to the Intelligence Committees of congress. That provision requires follow with the a complaint Inspector General, which would be reviewed under a strict timeline, 14 days for him to take a look at the complaint and determine weather or not that complaint is credible and meets the standard in the statute as an urgent whistleblower concern that should be reported to congress. That is what the whistleblower did in this case and it cleared the first hurdle. The Inspector General, michael was an urgent concern. An urgent concern isnt just an ordinary violation of law or an ordinary abuse of authority, it is a flagrant violation of law and a flagrant abuse of authority. Fall into that category with that as soon as possible must be presented to congress, at least intelligence communities explain why this has been stalled and congress does not have access to the event. Guest the second phase is after the Inspector General verifies it as an urgent event to be verified by congress. He must go to the director of National Intelligence who has 7 days in which to transmit to congress and the statute is specific on what is required. The director of National Intelligence must transmit either the complaint alone or utilize that seven days to decide in addition to the complaint, the agency is going to provide congress with a statement of position. The statute affords no discretion in the director of National Intelligence to withhold from congress, which is happening here. Host a minute ago you drop to the attorney generals title. Can the attorney general get involved in the process . Guest no, that was a slip of the tongue by me. It is the Inspector General to be clear and the director of National Intelligence. The attorney general is not involved and is nowhere discussed in the statute. Given the special constitutional role the government in the United States plays, can you whistleblow in the Intelligence Committee can you blow the whistle on the president . Guest sure. This is a misconception i think is happening and for a lot of different reasons. The misconception is just because it may involve the president doesnt mean it isnt not a violation of law that could be within the statute. The other thing to remember is the president may have issued orders. We dont know what is in the complaint itself may have issued orders orders to Different Department heads, may have trickled down, may have concerned violations of law or abuses of authority being carried out by other officials in the government. To say and speculate it is all about the president i think is premature and that is another reason why this complaint needs to get in the hands of the Intelligence Community committee. Invite callers to join the conversation if you have questions about it. David colapinto, a good person to ask those questions too. 2027488000 if you are a democrat. 2027488001 for republicans. Independents, 2027488002. David colapinto will be with us until the bottom of the hour, 8 30 eastern so you can listen to the conversation and get your calls in. Thomas is up first out of north carolina, republican. Good morning. Host quick question caller quick question. Can a whistleblower remain anonymous . I work for State Government and i know when a whistleblower follows a complaint files a complaint, they dont investigate right away, it can take months and months to make sure that person is credible. Guest good question and the laws and rules being able to file a complaint anonymously vary depending on where you are blowing the whistle. In this particular instance, you can blow the whistle confidentially and there is a lot of reasons for that. In the Intelligence Community, sometimes the identity of the employee is a secret and there is also other privacy act protections available at the initial stages and all we are talking about here is someone actually following filing a complaint asking it be looked into further. I dont think there was an indepth examination. It is credible in that sense, i did not mean to imply there has been a full sail investigation by the Inspector General. Host can you come back to the benefits of using this process as opposed to the whistleblower going and finding adam schiff and telling adam schiff what his concern is . Guest congress set it up this crediblesure only allegations that meet the flagrant standard would be transmitted to congress. If it doesnt meet that standard, there is another provision that says employees would be allowed to go, they would just be instructed how to must contact this person at the Intelligence Committee who is cleared and knows how to handle classified information and your information to the committee if it is not an urgent concern. In this particular instance, the benefit i dont know if congress envisioned the circumstance we had right now when they wrote the statute, but the attacks on the whistleblower because younfounded have a nonpartisan professional appointed by President Trump, michael adkinson, who has looked at it he has been in government for 50 15 years or more working for the Justice Department before he became Inspector General and he examined the complaint and found it meets the standard that it is credible and concerns a flagrant lation within the scope that is a benefit that doesnt exist under a lot of other laws. Most whistleblower laws, the whistleblower is on his or her own and goes to congress at his or her own risk. Was is a hurdle that cleared host . Host does the Inspector General then represent the whistleblower . Guest no. It is a completely independent function of the Inspector General. Host we heard the whistleblower does have now a team of lawyers in washington, d. C. Host that is what i have read and that is best practice weather you are in the Intelligence Community or dealing with a publicly traded company or another federal agency. Host fort lauderdale, florida, tom. Caller i believe the Inspector General said urgent and i have dniquestions it seems broke the law and what is the remedy of congress in subpoenaing him or holding him in contempt . The law says it should be given to congress immediately. The second says there should be no judicial review, which means you do not take it to the Justice Department for judicial review. They need to hold him in contempt, ask him what his definition of urgent is. What is your position that is a great question. The first question, on the face of the law, it has been broken. There is a disagreement between the Inspector General and dni. The Inspector General is Online Record saying disagree, it should be transmitted to congress, but i am not being given the authority to disclose the details of this whistleblower come late on the orders complaint on the orders of the dni. Officetice department, of Legal Counsel got involved, issued some sort of secret legal opinion to justify not transmitting this concern to congress. Statute, itof the is not being carried out, and the remedy for that, congress has the tools people should remember that congress and the president are two coequal branches of the government in this arena. The president has a lot of functions under National Security, congress has oversight and can exercise their oversight tools which are subpoenas, contempt citations if people do not obey, or they could withhold money from the agency. We have heard that discussed by adam schiff. To ultimate penalty would be remove people from office by impeachment. Host your thoughts on Edward Snowden . Guest Edward Snowden is an interesting case because he studied the laws in this area. He was a federal contractor, work for the nsa worked for the nsa. He determined the best way to get the information out that he wanted to disclose was not to go through this process, but to go to the media, and we all know his story about fleeing to hong kong and eventually to russia. That this is ais difficult question for it is notwers and something that i would advise anyone to do, because it is breaking the law and there are stiff penalties. There have been a number of prosecutions of people under the espionage act and other laws relating to classified information. There were a string of espionage act prosecutions, one of the most recent the reality winner case where she pled guilty to leaking one document to the intercept. She has a five Year Prison Sentence that she is serving. The case that those who have done that have made is that the system doesnt work, the system doesnt allow people to get to congress. When p when we were in discussion with the discussion with the Obama Administration and the Bush Administration to reform laws, one thing we kept hearing as we are going to make the system work. Administrative remedies will work. These processes we have set up to allow employees to go to congress as long as they go through the proper channels are going to work. That was a justification for prosecuting whistleblowers who did not go through the system. Host what do you think this ukrainian phone call whistleblower complaint means for the next one down the road . Guest it is testing the system set up by congress, and the Intelligence Community subjectlower system is failure if it is a they dont transmit the complaint to congress. It would be the worst possible outcome to have a whistleblower who did everything right, obeyed the law, did not leak to the media, had the complaint verified, and not had it go where Congress Said it should go. Host syracuse, new york, bill, democrat. Caller i find we have a lot of secrecy around. The fbi and cia are basically secret police trying to get information which they can use to prosecute people outside the law. I do have a question for the gentleman. How is the Inspector General appointed . Does it have to go through the president or congress or what is the situation . Guest excellent question. The Inspector General is appointed by the president , nominated, and confirmed by the senate. Host is that for dni or all inspectors general . Guest all inspectors general. They generally take their jobs very seriously, professionals, typically career prosecutors. Sometimes they rotate from agency to agency with Inspector General duties, and it is a true professional core of investigators who know how to handle these types of complaints. Host california, tom, an independent. About i got a question the whole purpose of the reason we have a constitution and the bill of rights and all the stuff when i was growing up, this was the word. Everybody has to follow it. The government, and is like interpreting the bible. People read what they want to read and take it as they want why if they want. Why do we have this . Guest at the bottom, it is a constitutional dispute between the president and congress, and the coequal branches our government. A few years ago, my law partner through his research, the untold story of americas first whistleblower law passed by the continental congress, that was a story where what happened was incredible. There were 10 sailors who blew the whistle on the commander of the Continental Navy regarding the alleged torture of british prisoners of war. The group of sailors got together. They thought what the commander was doing was wrong and they would risk their lives to report this. The reaction was, by the continental congress, passed the first whistleblower law in the United States, perhaps the first in the world where it was said by congress and i am paraphrasing what that statute said was that it is the duty for all persons within the service of the United States to report misconduct and fraud to congress at the earliest opportunity. The reason that is important is retoldnce that story was , it has resonated in the halls of congress for the last six years. The u. S. Has passed resolutions and cited that whistleblower law. Andy year, whistleblowers government officials gather to talk about that, on july 30, which is declared National Whistleblower day. In this particular case, the Inspector General, michael , henson has on his webpage has cited that continental from 1778 on his webpage. They have declared that that is the policy and the policies of todays laws will be carried out in that tradition. The same thing exists in the training materials for Intelligence Community employees when they get whistleblower training. Lawn, a reference to that stating it is the Public Policy of the United States. The caller is right. We should adhere to our values that make america special. Host the dni. Gov and Inspector General webpage, the first news item, the Inspector General recognizing National Whistleblower appreciation day. Mike in suffolk, virginia, independent. Caller good morning. How are you . Host well. What is your comment . Caller my comment in question, thateople, this committee this gentleman continues to talk about that this goes to, what qualifies them other than the politicians . Y are and what is the difference between a whistleblower and a snitch . Guest good question. The Intelligence Committees are permanent committees of the house and senate. The members are elected members. There is no process for members of congress who are duly elected did to get security clean elected to get security clearances. They are two coequal branches, so the members of these committees are those who have been appointed to serve and conduct oversight and budget authorization for the intelligence agencies. That is who they are. What was the other question . Host whether the whistleblower is a snitch . I havet has been been practicing whistleblower is for 30 some years, and it one of the things that is in the toolbox of people who are facing a whistleblower complaint, often to shoot the messenger and attack the person. You are a snitch or whatever. Theolks are whistleblower in this instance who was probably a long serving Intelligence Community employee, a professional. A lot of those folks have served in the military. They dont take a step like this lightly. Anyone who works in the Intelligence Community would know that taking this step to file a complaint with the Inspector General and ask that an urgent concern be transmitted to congress, let alone the subject matter, will create a lightning rod and you are going to not be enhancing your career by doing it. Host is there any circumstance under the whistleblower laws that the whistleblower can contact a committee directly . Guest not directly. You must exercise this under the rules, you have to go to the Inspector General to make this decision. Even if the Inspector General says no, i dont think it is an urgent concern, the employee can request to go to the committees without the in parameter of the Inspector General saying this is a concern and it meets the flagrant violation standard. The only warning in the statute is that you cant go unless you are advised how to do it to protect classified information. Host 15 minutes left with david cala pinto. Pinto. A in san francisco, california, democrat. Caller good morning. A few callers back hit my concern about the dni not submitting this report in time. Shallt heard the word go shall. Contempt should be the first thing he should do removalshould do and for nonperformance of duties, but can they dni be removed for nonperformance of duties . Guest those are two good questions . Thank you for pointing out that shalltatute does say within seven days transmitted to congress and can add the statement of position if the dni so chooses. We are dealing with a director of National Intelligence who is really enacting dni, not someone who has gone an acting dni, not someone who has gone through confirmation and approval by congress. Congress can impeach someone in an acting role, but this person has not been confirmed. Host his name is joseph mcguire. Nancy pelosi is doesg blocking him called upon him to violate the federal statute which unequivocally states the dni shall provide congress this information. The administration is endangering National Security and having a Chilling Effect on any future whistleblower who sees wrong doing. What is your reading of her letter . Guest she is very strong on the law. That is what the statute says. The arguments i have heard olc,ed about as to why the office of Legal Counsel of the department of justice may have come up with legal arguments as to why this is not an urgent complaint. Sense andat makes any none of it has gone public what the real reasons are. I dont believe the president has yet formally invoked executive privilege over this complaint. There has been a lot of discussion about phone calls and transcripts and people are forgetting about the complaint. Thee is a complaint in hands of the Inspector General that has been found urgent and a flagrant violation. Host how long have you been working in the field . Guest a good part of my 30 yields years. We came across it very early when we started practicing law, with people from the cia and fbi. I have litigated a lot of fbi cases with a similar problem. Host have you seen an Administration Step into this process as Speaker Pelosi is calling out the administration for doing . Guest in the intelligence past,ity world, in the things are more transparent today than 10 years of 10 years ago. A lot of things happened in the Intelligence Community with whistleblowers trying to raise concerns that never saw the light of day. The statute was not enacted to 1998 and prior to that, there was no process which someone could go with approval to the Intelligence Committees. It is a relatively new process. There were also additional rules and laws enacted in 2013 and 2014 to provide remedies if someone is retaliated again. Against. That system has not worked well. It is not a public, open, and transmitter and transparent process. There have been a lot of retaliations against people trying to report these things in the past. Host just about 10 minutes left with david colapinto. Thank you for waiting. Caller ask this gentleman, please, did this whistleblower about ukraine actually here President Trumps call or see a printout of it . What are we to believe . Guest that is a good question. The answer is nobody knows. These complaints have to be kept secret. They are classified and currently Even Congress cannot see this complaint. The question about whether or not the whistleblower has much support to corroborate the allegations, whether or not there really was a violation and whether it involves things beyond the conversation by the president , all of that is unknown. Reasons why the Intelligence Committee should get a copy of the complaint. Host is all that known by the Intelligence Community Inspector General . He would have taken that into consideration when saying this is urgent . Thet whatever is in complaint was given to the Inspector General who said this meets the standard and should be given to congress. Host from north branch, minnesota, ed, independent. Caller it is my suspicion that trump himself is the whistleblower. The publicity he will get from this ushers away all the other andense they talk about, that is who gets elected, who gets the most controversy or publicity. That is my point. Guest that is an interesting. That is an interesting theory. It reminds me when after watergate there was for probably 30 years, this parlor game played as to who was deep throat. Not many people guest it was it was mark guessed fbi. Of the fbi i heard i heard maybe it was john bolton. Lets get the complaint to congress where it belongs, that is what the law says. That is sound Public Policy. The best way for President Trump to diffuse the situation is to allow the complaint to go forward. It does not mean he cannot raise objections, but it needs to get into the hands of people who can investigate. Host does the las the law say g else after getting the complaint to the Intelligence Committees . Inthere any further process the whistleblower protection law . Guest no. The idea here is to get the allegations of
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