In the current circumstances, so far the Trump administration is honoring neither the letter of the law nor the spirit of good faith cooperation that the relevant case law contemplates. Maguire seems not to have notified the committee, in any form, that a credible issue had arisen. He blew through the statutory deadline with seemingly no attempt to communicate with the committee. It seems the only reason the committee found out about the issue was because of a letter sent to the committee chair by the intelligence community. In addition, from what is public about the communications between Schiff and Maguire, it seems that the agency head is not calling the shots here—as Clinton’s and Obama’s statements about the legislation seemed to envision—but, rather, some “higher power” outside of the agency is doing so. None of this looks good.
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As I wrote earlier this year, the precise contours of any executive privilege are contested, and the executive branch, the courts and Congress tend to take divergent positions that favor their respective constitutional roles. The current situation before the House Intelligence Committee goes further—and not in a positive direction. Going forward, if the information the whistleblower provided to the inspector general implicates sensitive national security issues, the right path forward is for the executive branch to follow the framework of United States v. AT&T and seek “optimal accommodation through a realistic evaluation of the needs of the conflicting branches” in this situation.
If the information is being withheld based on a theory of some other type of executive privilege or some other reason, the administration treads on considerably less solid legal ground. In the face of a statute that already self-limits the required reporting to instances of “particularly flagrant or serious” problems, the administration will need a very, very compelling reason that is rooted in the public’s interest—not the interests of a particular individual—to justify not providing the relevant information to the committee.