What Happens When a Whistleblower Files A Complaint?

subject of a whistleblower complaint. It reportedly says that President Trump tried to pressure the Ukrainian president to investigate former Vice President Joe Biden and his son. The President appeared to acknowledge at least that that conversation took place on Sunday. Conversation I had was largely congratulatory. We're largely the fact that we don't want our people like Vice President Biden

and his son creating to the big ruption. Already in joining me is Andrew Cant, professor at Fordham Law School. Andrew this complaint comes under the Intelligence Community Whistleblower Protection Act, passed in tell us what's supposed to happen when a whistle blower comes forward? Well, some of the things June

that we're supposed to happen actually already have. The whistleblower is supposed to transmit a complaint to what's called the Inspector General of the for the Intelligence Committee, and that happened. That inspector general is supposed to decide whether the complaint is credible or not, and that happened that the inspector General determined it to be credible. And then what has also happened is that inspector General is supposed to forward

it to the Director of National Intelligence. Uh, and he did that, and at that point it's supposed to be transmitted to Congress. That's where the breakdown has happened. The Director of National Intelligence is withholding the document from the Congressional Intelligence Committee. And why is he holding it? What are the reasons? Stated? Well, some people think there may be an underlying claim of some kind of executive privilege

of the president. But for now, uh, the Director of National Intelligence is merely saying, pointing to this statute that you mentioned, that the complaint does not does not talk about a quote urgent concern facing the intelligence community, and therefore does not need to be transmitted to Congress. Can the d N I countermand the Inspector General's determination that

there was an urgent need. Well, most people will look at the statute and I agree with this, think no, it's it seems pretty clear that the statute just sees the d n I as a conduit that once it's been deemed credible by the Inspector General, the DNA is supposed to pass it directly along to the Congress. And why was the Justice Department involved in the determination by

the d n I. Is that usual? Well, we don't know for sure, but most likely they were asked to give a legal opinion on pap stable basis for withholding it. There's an office within the Justice Department called the the Office of Legal Counsel, and they're kind of the you know, the the interpreter of the hardest legal questions facing the executive and they're sometimes asked to weigh in on those

kinds of questions. So, if the person at the heart of the whistleblowers complaint in this case, supposedly the president can block the revelation of the complaint, does it then

defeat the purpose of a whistleblower law? It does, and it just points to the larger problem that we're starting to talk about in these years of of President Trump's administration is that our laws and institutions are really not designed to handle a situation where it's the president himself who is who is causing legal and and foreign policy concerns. What can the Democrats do? Suppose they want to play hardball? So far we haven't seen much progress in the Judiciary

Committee hearings. So what could they do? Well, they've already sent a subpoena to the d n I, although he has said he's not going to show up because he said it was too too quick a timetable. Uh you know, they could seek to discover the identity of the whistleblower and ask that man or woman to uh you know, to appear, or even subpoena that person to appear before them to directly hear from that person. Um, you know, there's probably some other routes they could take, but those

are the most obvious. And what would they have a continuing problem with people not showing up, people not listening or to subpoenas. Is there any criminal action that can be taken? Again? People people who will not show up for subpoena. Well, so Congress isn't a little bit of a tough spot. The ordinary process is that in for real severe non compliance with congressional subpoenas is that there would be a request that the executive branch initiate a

criminal prosecution. But obviously, um that might work with if it's a private party who's resisting, that's very unlikely to work in a case like this, where you know it's the president of the United States and the people who work for him who are resisting. So Congress is in a bit of a bind. Some people say that the Congress itself has a power that's sometimes called inherent contempt where without going to the courts, are going to the

executive branch. Congress could, for example, find somebody who has defined Congress that power hasn't been used for quite some time, and it's uh, it's current vitality is a little bit in dispute. This is certainly increasing calls from for impeachment, even some people who were on the fence. For example, the Adam Shift who leads the House Intelligence Committee, said that this is really crosses the line, basically the rubicon. So if they do drop articles of impeachment, is if

there is an actual impeachment. Will any of the people who have refused to testify or refused to comply with subpoenas, does the Congress have any more authority over them? Well, so your Congress has additional authority in the sense that um it might expand a bit the scope of what they can plausibly said to be looking at if they're also considering impeachment in addition to the things that Congress usually considers, like you know, passing a new law or

or understanding how current laws are being enforced. So kind of it kind of broadens the scope a bit about what is legitimate congressional inquiries, but it doesn't really give them any more power to demand compliance if people are going to keep refusing to to show up, refusing to answer questions. You know, if these things end up getting litigated in court, um, a court is probably a more receptive to Congress's arguments. Though. If if there is impeachment

for seedings underway. That's why I wonder with the calls for impeachment often you hear, well, they'll have more ability to get things moving, but it seems that if they'll still be stuck in the courts and the core will be stuck until they get to the Supreme Court. That could well be. Yeah, the you know, going to court always takes a long time. It's not it's not really a process that's designed to be quick moving. You know, we want to hear all sides and give the judges

time to think about it. So it is a real problem. That's why, you know, some have been suggesting that Congress really, if it wants to begin advancing an inquiry more quickly, needs to be looking to find its own sources of information and having them testify rather than trying to litigate with the executive branch to release documents that the executive is holding. And finally, the President has said there was no quid pro quo in this conversation. Does that make

a difference. Maybe maybe not. Um there's you know, for for example, for the campaign finance laws. That doesn't make a difference. If if the reason that the President was seeking to pressure Ukraine like this was to have an intervention that would help him in election with Joseph Biden. And it doesn't matter whether there is an express quick quo pro it's just illegal to seek to have a foreign nationals give a thing of value to your presidential campaign. So,

but maybe in other circumstances it could. Thanks so much for helping us straighten out some of this that say, Andrew Canties, Professort Fordham Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg