Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. How speaker Nancy
Speaker 1: Pelosi is giving the president a deadline. He has until
Speaker 1: Thursday to release the transcript of his call with Ukraine's president,
Speaker 1: subject of a whistleblower complaint. It reportedly says that President
Speaker 1: Trump tried to pressure the Ukrainian president to investigate former
Speaker 1: Vice President Joe Biden and his son. The President appeared
Speaker 1: to acknowledge at least that that conversation took place on Sunday.
Speaker 1: Conversation I had was largely congratulatory. We're largely the fact
Speaker 1: that we don't want our people like Vice President Biden
Speaker 1: and his son creating to the big ruption. Already in
Speaker 1: joining me is Andrew Cant, professor at Fordham Law School.
Speaker 1: Andrew this complaint comes under the Intelligence Community Whistleblower Protection Act,
Speaker 1: passed in tell us what's supposed to happen when a
Speaker 1: whistle blower comes forward? Well, some of the things June
Speaker 1: that we're supposed to happen actually already have. The whistleblower
Speaker 1: is supposed to transmit a complaint to what's called the
Speaker 1: Inspector General of the for the Intelligence Committee, and that happened.
Speaker 1: That inspector general is supposed to decide whether the complaint
Speaker 1: is credible or not, and that happened that the inspector
Speaker 1: General determined it to be credible. And then what has
Speaker 1: also happened is that inspector General is supposed to forward
Speaker 1: it to the Director of National Intelligence. Uh, and he
Speaker 1: did that, and at that point it's supposed to be
Speaker 1: transmitted to Congress. That's where the breakdown has happened. The
Speaker 1: Director of National Intelligence is withholding the document from the
Speaker 1: Congressional Intelligence Committee. And why is he holding it? What
Speaker 1: are the reasons? Stated? Well, some people think there may
Speaker 1: be an underlying claim of some kind of executive privilege
Speaker 1: of the president. But for now, uh, the Director of
Speaker 1: National Intelligence is merely saying, pointing to this statute that
Speaker 1: you mentioned, that the complaint does not does not talk
Speaker 1: about a quote urgent concern facing the intelligence community, and
Speaker 1: therefore does not need to be transmitted to Congress. Can
Speaker 1: the d N I countermand the Inspector General's determination that
Speaker 1: there was an urgent need. Well, most people will look
Speaker 1: at the statute and I agree with this, think no,
Speaker 1: it's it seems pretty clear that the statute just sees
Speaker 1: the d n I as a conduit that once it's
Speaker 1: been deemed credible by the Inspector General, the DNA is
Speaker 1: supposed to pass it directly along to the Congress. And
Speaker 1: why was the Justice Department involved in the determination by
Speaker 1: the d n I. Is that usual? Well, we don't
Speaker 1: know for sure, but most likely they were asked to
Speaker 1: give a legal opinion on pap stable basis for withholding it.
Speaker 1: There's an office within the Justice Department called the the
Speaker 1: Office of Legal Counsel, and they're kind of the you know,
Speaker 1: the the interpreter of the hardest legal questions facing the
Speaker 1: executive and they're sometimes asked to weigh in on those
Speaker 1: kinds of questions. So, if the person at the heart
Speaker 1: of the whistleblowers complaint in this case, supposedly the president
Speaker 1: can block the revelation of the complaint, does it then
Speaker 1: defeat the purpose of a whistleblower law? It does, and
Speaker 1: it just points to the larger problem that we're starting
Speaker 1: to talk about in these years of of President Trump's
Speaker 1: administration is that our laws and institutions are really not
Speaker 1: designed to handle a situation where it's the president himself
Speaker 1: who is who is causing legal and and foreign policy concerns.
Speaker 1: What can the Democrats do? Suppose they want to play hardball?
Speaker 1: So far we haven't seen much progress in the Judiciary
Speaker 1: Committee hearings. So what could they do? Well, they've already
Speaker 1: sent a subpoena to the d n I, although he
Speaker 1: has said he's not going to show up because he
Speaker 1: said it was too too quick a timetable. Uh you know,
Speaker 1: they could seek to discover the identity of the whistleblower
Speaker 1: and ask that man or woman to uh you know,
Speaker 1: to appear, or even subpoena that person to appear before
Speaker 1: them to directly hear from that person. Um, you know,
Speaker 1: there's probably some other routes they could take, but those
Speaker 1: are the most obvious. And what would they have a
Speaker 1: continuing problem with people not showing up, people not listening
Speaker 1: or to subpoenas. Is there any criminal action that can
Speaker 1: be taken? Again? People people who will not show up
Speaker 1: for subpoena. Well, so Congress isn't a little bit of
Speaker 1: a tough spot. The ordinary process is that in for
Speaker 1: real severe non compliance with congressional subpoenas is that there
Speaker 1: would be a request that the executive branch initiate a
Speaker 1: criminal prosecution. But obviously, um that might work with if
Speaker 1: it's a private party who's resisting, that's very unlikely to
Speaker 1: work in a case like this, where you know it's
Speaker 1: the president of the United States and the people who
Speaker 1: work for him who are resisting. So Congress is in
Speaker 1: a bit of a bind. Some people say that the
Speaker 1: Congress itself has a power that's sometimes called inherent contempt
Speaker 1: where without going to the courts, are going to the
Speaker 1: executive branch. Congress could, for example, find somebody who has
Speaker 1: defined Congress that power hasn't been used for quite some time,
Speaker 1: and it's uh, it's current vitality is a little bit
Speaker 1: in dispute. This is certainly increasing calls from for impeachment,
Speaker 1: even some people who were on the fence. For example,
Speaker 1: the Adam Shift who leads the House Intelligence Committee, said
Speaker 1: that this is really crosses the line, basically the rubicon.
Speaker 1: So if they do drop articles of impeachment, is if
Speaker 1: there is an actual impeachment. Will any of the people
Speaker 1: who have refused to testify or refused to comply with subpoenas,
Speaker 1: does the Congress have any more authority over them? Well,
Speaker 1: so your Congress has additional authority in the sense that
Speaker 1: um it might expand a bit the scope of what
Speaker 1: they can plausibly said to be looking at if they're
Speaker 1: also considering impeachment in addition to the things that Congress
Speaker 1: usually considers, like you know, passing a new law or
Speaker 1: or understanding how current laws are being enforced. So kind
Speaker 1: of it kind of broadens the scope a bit about
Speaker 1: what is legitimate congressional inquiries, but it doesn't really give
Speaker 1: them any more power to demand compliance if people are
Speaker 1: going to keep refusing to to show up, refusing to
Speaker 1: answer questions. You know, if these things end up getting
Speaker 1: litigated in court, um, a court is probably a more
Speaker 1: receptive to Congress's arguments. Though. If if there is impeachment
Speaker 1: for seedings underway. That's why I wonder with the calls
Speaker 1: for impeachment often you hear, well, they'll have more ability
Speaker 1: to get things moving, but it seems that if they'll
Speaker 1: still be stuck in the courts and the core will
Speaker 1: be stuck until they get to the Supreme Court. That
Speaker 1: could well be. Yeah, the you know, going to court
Speaker 1: always takes a long time. It's not it's not really
Speaker 1: a process that's designed to be quick moving. You know,
Speaker 1: we want to hear all sides and give the judges
Speaker 1: time to think about it. So it is a real problem.
Speaker 1: That's why, you know, some have been suggesting that Congress really,
Speaker 1: if it wants to begin advancing an inquiry more quickly,
Speaker 1: needs to be looking to find its own sources of
Speaker 1: information and having them testify rather than trying to litigate
Speaker 1: with the executive branch to release documents that the executive
Speaker 1: is holding. And finally, the President has said there was
Speaker 1: no quid pro quo in this conversation. Does that make
Speaker 1: a difference. Maybe maybe not. Um there's you know, for
Speaker 1: for example, for the campaign finance laws. That doesn't make
Speaker 1: a difference. If if the reason that the President was
Speaker 1: seeking to pressure Ukraine like this was to have an
Speaker 1: intervention that would help him in election with Joseph Biden.
Speaker 1: And it doesn't matter whether there is an express quick
Speaker 1: quo pro it's just illegal to seek to have a
Speaker 1: foreign nationals give a thing of value to your presidential campaign. So,
Speaker 1: but maybe in other circumstances it could. Thanks so much
Speaker 1: for helping us straighten out some of this that say,
Speaker 1: Andrew Canties, Professort Fordham Law School. Thanks for listening to
Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to
Speaker 1: the show on Apple Podcasts, SoundCloud, and on bloomberg dot
Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg