Intelligence Community's Inspector General and Impeachment

Now What?

As I watched the three hours of the House Intelligence Committee's questioning of Director of National Intelligence Joseph Maguire it increasingly seemed to me that (1) no one was entirely pure, and (2) the Constitution and Acts of Congress are inadequate to resolve the challenges confronting the Committee and the Director. [Photo: Director Joseph Maguire; source: Wikimedia Commons.]

The Trump-can-do-no-wrong Republicans were overstating President Trump's innocence. The Democrats were playing fast and loose with the language of the Inspector General of the Intelligence Community Act (IGICA) and trying to get Director Joseph Maguire to make statements in support of their case for impeachment that Maguire was at least entitled, if not required, to refuse to make. And Director Maguire was refusing to acknowledge the conflict of interest he had in (a) serving the President who had appointed him and to whom he reported, and (b) carrying out the spirit (though not the language) of the IGICA. [Photo: President Donald Trump; source: Wikimedia Commons.]

This blog is not a "legal opinion." I have read the IGICA -- which can be found here 50 USC Sec. 3033 -- and scanned the 8000-plus-word Responsibilities and Authorities of the Director of National Intelligence Act -- available here 50 USC Sec. 3024. That's not enough research to produce a definitive judgment about the applicability of either or both laws.

But the IGICA's title referencing the "Intelligence Community," its numerous uses of variations of the phrase "programs and activities within the responsibility and authority of the Director of National Intelligence" throughout the Act, can reasonably lead one to the conclusion that the probable legislative history of the Act (i.e., events preceding and surrounding its creation, press reports, committee hearings, and debates on the floor) would not support an interpretation of the language of the Act as including the process to be followed in the case earlier before Director Maguire and now before Congress: namely acts of the President alleged to be "fraud and abuse," other criminal violations, or threats to national security. [Photo: House Intelligence Committee Chair, Adam Schiff; source: Wikimedia Commons.]

Of course, this does not mean that the President did no wrong. It is only to say that it is not clear that the IGICA contemplated or addressed, let alone compelled, the Inspector General to investigate, or Director Maguire to send to the Intelligence Committee the Inspector General's findings.

What they clearly could do, and did do, was to refer the whistle-blower's complaint to the FBI.

The central problem, as I now see it, is that neither the Constitution nor acts of Congress address the challenges to our democracy posed by a president like President Donald Trump. Indeed, I doubt that the founders' effort to avoid a monarchy in the White House, and their single choice of impeachment as a check on "high crimes and misdemeanors," envisioned the possibility we would ever elect a president like Trump.

The Constitution provides for impeachment of the president and other officials, Article II, Sec. 4, that the House "shall have the sole Power of Impeachment." Article I, Sec. 2, clause 5, and that the Senate "shall have the sole Power to try all Impeachments." Article I, Sec. 3, clause 6. (Article II, Sec. 4, provides: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.")

The 25th Amendment, certified by the President in 1967, provides for removal of a president found to be "unable to discharge the powers and duties of his office" -- a remedy primarily focused on physical or mental disability.

While the allegations in the whistle-blower's complaint may be among the most serious of Trump's offenses, the challenge confronting Congress is the tsunami of Trump's governance by tweets, over 14,000 false or misleading statements, attacks on columns of democracy (such as an independent media and judiciary), brazen violations of previously accepted required norms, ethics, morality, laws and constitutional restraints on presidents. For a partial list, see, e.g., Max Boot, "Trump Isn't Just Violating Norms -- He's Also Breaking the Law," The Washington Post, April 25, 2019.

What Congress must do is (1) reassert the constitutional powers it has been granted, that have gradually been taken over by the Executive branch, and (2) then address what additional checks are necessary to deal with this unprecedented string of presidential abuses. Perhaps what is first needed is a kind of Congressional Inspector General whose sole job it is to oversee the president and White House staff, receiving whistle-blower complaints, doing its own monitoring, then reporting to the House and Senate leadership and relevant committees. Perhaps this could provide the congressional incentive to create the constitutionally appropriate additional legislation to restrain the variety and quantity of presidential abuses unimagined by the constitution's drafters.

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