The Whistleblower Executive Every call with a foreign leader is now subject to congressional review.
https://www.wsj.com/articles/the-whistleblower-executive-11570056633
The impeachment process is barely underway and already some constitutional norms are being trampled without a note of media notice or political concern. To wit, can a whistleblower inside the intelligence bureaucracy override a President’s right to executive privilege merely with an accusation?
That seems to be the default view among Democrats and the press as they luxuriate in news about Donald Trump’s conversations with foreign leaders. First it was the call with Ukraine’s President. Then on Monday the leak was what Mr. Trump told Australian Prime Minister Scott Morrison. Now Democrats want to see the transcripts of other phone calls with other leaders.
“This is a coverup,” declared Nancy Pelosi last week, but if that’s true it is the most incompetent coverup in presidential history. Mr. Trump can’t seem to have any conversation that doesn’t leak, in part or whole, or that can’t be demanded by Congress as if everyone in the executive branch works for the House Speaker. Mr. Trump has released the Ukraine transcript and the whistleblower complaint, and he’s still accused of a coverup.
Last week’s inquisition of acting director of national intelligence Joseph Maguire by House Intelligence Chairman Adam Schiff captures the prevailing disdain for the separation of powers when Mr. Trump is the political target. Mr. Maguire, who has an impeccable reputation, had received the whistleblower complaint as part of his duties. He then acted responsibly by seeking legal advice about whether the document was subject to executive privilege.
Mr. Schiff berated him for even waiting to turn the document over to Congress: “At any time over the last month that you held this complaint, did the White House assert executive privilege?”
Mr. Maguire: “Mr. Chairman, I have endeavored—”
Mr. Schiff: “I think that’s a yes or no question. Did they ever assert executive privilege?”
Amid more browbeating, Mr. Maguire explained that the White House went through a “deliberate process” and “it did appear that [the complaint] has executive privilege. . . . It is the White House that determines that. I cannot determine that as the director of national intelligence.”
Mr. Schiff: “But in this case the White House, the President is the subject of the complaint. He’s the subject of the wrongdoing.” . . .
Mr. Maguire: “I was endeavoring to get the information to you, Mr. Chairman, but I could not forward it as a member of the executive branch without executive privileges being addressed.” . . .
Mr. Schiff: “Well, corruption is not the business, or it shouldn’t be, of the White House or anyone in it.”
Mr. Maguire: “No, but what the White House decides to do with their privileged communications and information, I believe is the business of the White House.”
Mr. Schiff: “Do you believe that’s true even if that communication involves crime or fraud?”
According to the Justice Department’s analysis of the whistleblower’s complaint, there was no “crime or fraud.” But Mr. Schiff treats the whistleblower’s complaint as enough to override any claim of a President’s right to have confidential communications with foreign leaders.
The implication is that any time anyone in the bureaucracy issues a complaint against a President, Congress has the power to demand it be delivered and made public. That is already happening with the stories about Mr. Morrison. This means that no foreign leader can have the expectation that anything he tells Mr. Trump, or the next President, will be confidential.
The first leak of a Trump phone call came in his first days in office after he spoke with previous Australian Prime Minister Malcolm Turnbull. Then his call to Mexico’s President was leaked. The White House then decided to protect the secrecy of those calls by putting them onto a separate system, which seems justified given the leaks. Yet now this too is said to be part of the coverup.
Once again we see the irony that in the rush to impeach Mr. Trump for his real or imagined violations of political norms, his opponents have no problem violating norms themselves. The Clinton campaign could pay to dig up foreign dirt because Mr. Trump was a unique threat to the country. The FBI could use the dirt to justify a FISA Court warrant because Mr. Trump might have colluded with Russia. Obama officials could unmask the names of Trump officials and leak them to the press because, well, they’re Trump officials. Judges can ignore the separation of powers because Mr. Trump demagogues about immigration.
And now any bureaucrat who hears about a conversation can file a complaint that overrides a President’s ability to speak with foreign leaders with the expectation of privacy. We are in dangerous constitutional waters, and not only because of Donald Trump. In the urgency to oust Donald Trump, anything goes.
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