WEBVTT - What Happens When a Whistleblower Files A Complaint?

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. How speaker Nancy

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<v Speaker 1>Pelosi is giving the president a deadline. He has until

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<v Speaker 1>Thursday to release the transcript of his call with Ukraine's president,

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<v Speaker 1>subject of a whistleblower complaint. It reportedly says that President

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<v Speaker 1>Trump tried to pressure the Ukrainian president to investigate former

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<v Speaker 1>Vice President Joe Biden and his son. The President appeared

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<v Speaker 1>to acknowledge at least that that conversation took place on Sunday.

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<v Speaker 1>Conversation I had was largely congratulatory. We're largely the fact

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<v Speaker 1>that we don't want our people like Vice President Biden

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<v Speaker 1>and his son creating to the big ruption. Already in

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<v Speaker 1>joining me is Andrew Cant, professor at Fordham Law School.

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<v Speaker 1>Andrew this complaint comes under the Intelligence Community Whistleblower Protection Act,

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<v Speaker 1>passed in tell us what's supposed to happen when a

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<v Speaker 1>whistle blower comes forward? Well, some of the things June

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<v Speaker 1>that we're supposed to happen actually already have. The whistleblower

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<v Speaker 1>is supposed to transmit a complaint to what's called the

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<v Speaker 1>Inspector General of the for the Intelligence Committee, and that happened.

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<v Speaker 1>That inspector general is supposed to decide whether the complaint

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<v Speaker 1>is credible or not, and that happened that the inspector

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<v Speaker 1>General determined it to be credible. And then what has

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<v Speaker 1>also happened is that inspector General is supposed to forward

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<v Speaker 1>it to the Director of National Intelligence. Uh, and he

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<v Speaker 1>did that, and at that point it's supposed to be

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<v Speaker 1>transmitted to Congress. That's where the breakdown has happened. The

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<v Speaker 1>Director of National Intelligence is withholding the document from the

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<v Speaker 1>Congressional Intelligence Committee. And why is he holding it? What

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<v Speaker 1>are the reasons? Stated? Well, some people think there may

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<v Speaker 1>be an underlying claim of some kind of executive privilege

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<v Speaker 1>of the president. But for now, uh, the Director of

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<v Speaker 1>National Intelligence is merely saying, pointing to this statute that

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<v Speaker 1>you mentioned, that the complaint does not does not talk

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<v Speaker 1>about a quote urgent concern facing the intelligence community, and

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<v Speaker 1>therefore does not need to be transmitted to Congress. Can

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<v Speaker 1>the d N I countermand the Inspector General's determination that

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<v Speaker 1>there was an urgent need. Well, most people will look

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<v Speaker 1>at the statute and I agree with this, think no,

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<v Speaker 1>it's it seems pretty clear that the statute just sees

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<v Speaker 1>the d n I as a conduit that once it's

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<v Speaker 1>been deemed credible by the Inspector General, the DNA is

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<v Speaker 1>supposed to pass it directly along to the Congress. And

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<v Speaker 1>why was the Justice Department involved in the determination by

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<v Speaker 1>the d n I. Is that usual? Well, we don't

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<v Speaker 1>know for sure, but most likely they were asked to

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<v Speaker 1>give a legal opinion on pap stable basis for withholding it.

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<v Speaker 1>There's an office within the Justice Department called the the

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<v Speaker 1>Office of Legal Counsel, and they're kind of the you know,

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<v Speaker 1>the the interpreter of the hardest legal questions facing the

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<v Speaker 1>executive and they're sometimes asked to weigh in on those

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<v Speaker 1>kinds of questions. So, if the person at the heart

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<v Speaker 1>of the whistleblowers complaint in this case, supposedly the president

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<v Speaker 1>can block the revelation of the complaint, does it then

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<v Speaker 1>defeat the purpose of a whistleblower law? It does, and

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<v Speaker 1>it just points to the larger problem that we're starting

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<v Speaker 1>to talk about in these years of of President Trump's

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<v Speaker 1>administration is that our laws and institutions are really not

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<v Speaker 1>designed to handle a situation where it's the president himself

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<v Speaker 1>who is who is causing legal and and foreign policy concerns.

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<v Speaker 1>What can the Democrats do? Suppose they want to play hardball?

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<v Speaker 1>So far we haven't seen much progress in the Judiciary

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<v Speaker 1>Committee hearings. So what could they do? Well, they've already

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<v Speaker 1>sent a subpoena to the d n I, although he

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<v Speaker 1>has said he's not going to show up because he

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<v Speaker 1>said it was too too quick a timetable. Uh you know,

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<v Speaker 1>they could seek to discover the identity of the whistleblower

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<v Speaker 1>and ask that man or woman to uh you know,

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<v Speaker 1>to appear, or even subpoena that person to appear before

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<v Speaker 1>them to directly hear from that person. Um, you know,

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<v Speaker 1>there's probably some other routes they could take, but those

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<v Speaker 1>are the most obvious. And what would they have a

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<v Speaker 1>continuing problem with people not showing up, people not listening

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<v Speaker 1>or to subpoenas. Is there any criminal action that can

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<v Speaker 1>be taken? Again? People people who will not show up

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<v Speaker 1>for subpoena. Well, so Congress isn't a little bit of

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<v Speaker 1>a tough spot. The ordinary process is that in for

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<v Speaker 1>real severe non compliance with congressional subpoenas is that there

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<v Speaker 1>would be a request that the executive branch initiate a

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<v Speaker 1>criminal prosecution. But obviously, um that might work with if

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<v Speaker 1>it's a private party who's resisting, that's very unlikely to

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<v Speaker 1>work in a case like this, where you know it's

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<v Speaker 1>the president of the United States and the people who

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<v Speaker 1>work for him who are resisting. So Congress is in

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<v Speaker 1>a bit of a bind. Some people say that the

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<v Speaker 1>Congress itself has a power that's sometimes called inherent contempt

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<v Speaker 1>where without going to the courts, are going to the

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<v Speaker 1>executive branch. Congress could, for example, find somebody who has

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<v Speaker 1>defined Congress that power hasn't been used for quite some time,

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<v Speaker 1>and it's uh, it's current vitality is a little bit

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<v Speaker 1>in dispute. This is certainly increasing calls from for impeachment,

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<v Speaker 1>even some people who were on the fence. For example,

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<v Speaker 1>the Adam Shift who leads the House Intelligence Committee, said

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<v Speaker 1>that this is really crosses the line, basically the rubicon.

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<v Speaker 1>So if they do drop articles of impeachment, is if

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<v Speaker 1>there is an actual impeachment. Will any of the people

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<v Speaker 1>who have refused to testify or refused to comply with subpoenas,

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<v Speaker 1>does the Congress have any more authority over them? Well,

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<v Speaker 1>so your Congress has additional authority in the sense that

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<v Speaker 1>um it might expand a bit the scope of what

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<v Speaker 1>they can plausibly said to be looking at if they're

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<v Speaker 1>also considering impeachment in addition to the things that Congress

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<v Speaker 1>usually considers, like you know, passing a new law or

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<v Speaker 1>or understanding how current laws are being enforced. So kind

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<v Speaker 1>of it kind of broadens the scope a bit about

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<v Speaker 1>what is legitimate congressional inquiries, but it doesn't really give

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<v Speaker 1>them any more power to demand compliance if people are

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<v Speaker 1>going to keep refusing to to show up, refusing to

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<v Speaker 1>answer questions. You know, if these things end up getting

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<v Speaker 1>litigated in court, um, a court is probably a more

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<v Speaker 1>receptive to Congress's arguments. Though. If if there is impeachment

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<v Speaker 1>for seedings underway. That's why I wonder with the calls

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<v Speaker 1>for impeachment often you hear, well, they'll have more ability

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<v Speaker 1>to get things moving, but it seems that if they'll

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<v Speaker 1>still be stuck in the courts and the core will

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<v Speaker 1>be stuck until they get to the Supreme Court. That

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<v Speaker 1>could well be. Yeah, the you know, going to court

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<v Speaker 1>always takes a long time. It's not it's not really

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<v Speaker 1>a process that's designed to be quick moving. You know,

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<v Speaker 1>we want to hear all sides and give the judges

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<v Speaker 1>time to think about it. So it is a real problem.

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<v Speaker 1>That's why, you know, some have been suggesting that Congress really,

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<v Speaker 1>if it wants to begin advancing an inquiry more quickly,

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<v Speaker 1>needs to be looking to find its own sources of

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<v Speaker 1>information and having them testify rather than trying to litigate

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<v Speaker 1>with the executive branch to release documents that the executive

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<v Speaker 1>is holding. And finally, the President has said there was

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<v Speaker 1>no quid pro quo in this conversation. Does that make

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<v Speaker 1>a difference. Maybe maybe not. Um there's you know, for

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<v Speaker 1>for example, for the campaign finance laws. That doesn't make

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<v Speaker 1>a difference. If if the reason that the President was

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<v Speaker 1>seeking to pressure Ukraine like this was to have an

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<v Speaker 1>intervention that would help him in election with Joseph Biden.

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<v Speaker 1>And it doesn't matter whether there is an express quick

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<v Speaker 1>quo pro it's just illegal to seek to have a

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<v Speaker 1>foreign nationals give a thing of value to your presidential campaign. So,

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<v Speaker 1>but maybe in other circumstances it could. Thanks so much

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<v Speaker 1>for helping us straighten out some of this that say,

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<v Speaker 1>Andrew Canties, Professort Fordham Law School. Thanks for listening to

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<v Speaker 1>the Bloomberg Law Podcast. You can subscribe and listen to

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<v Speaker 1>the show on Apple Podcasts, SoundCloud, and on bloomberg dot

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<v Speaker 1>com slash podcast. I'm June Brosso. This is Bloomberg