The acting director of national intelligence is withholding a secret whistleblower complaint from the House intelligence committee because it involves conduct by someone outside the spy agencies and doesn’t meet the legal requirement for disclosure to Congress, according to letters obtained by NBC News.
But in doing so, acting DNI Joseph Maguire acknowledges he is overruling the intelligence community’s independent watchdog, which thinks the complaint should be turned over.
The letters, written by Jason Klitenic, the DNI’s general counsel, provide Maguire’s side of the story in what has quickly become an acrimonious dispute with Rep. Adam Schiff, chairman of the House intelligence committee.
On Friday night, Schiff went public about the matter in dramatic fashion, announcing that he had issued a subpoena for a classified whistleblower complaint that he charged was being illegally withheld to shield President Donald Trump. On Tuesday, Schiff said Maguire has refused to comply with the subpoena.
“The Acting DNI can either provide the complaint as required under the law, or he will be required to come before the Committee to tell the public why he is not following the clear letter of the law, including whether the White House or the Attorney General are directing him to do so,” Schiff said in a statement Tuesday night. “He has yet to provide the complaint in response to the Committee’s subpoena, so I expect him to appear on Thursday, under subpoena if necessary.”
Current and former intelligence officials told NBC News they were taken aback by Schiff’s public escalation and his suggestion that they acting in bad faith at Trump’s behest. Schiff has declined to say whether he is aware of the nature of the complaint.
A committee staffer who declined to be named said that Schiff went public because he wanted to send a message that “under no circumstances can there be any reprisals against this whistleblower.”
Sen. Mark Warner of Virginia, the ranking Democrat on the intelligence committee, has also been briefed on the existence of the whistleblower complaint but has said nothing publicly about it.
Maguire is a decorated retired Navy SEAL who had been tapped by Trump and confirmed by the Senate to head the National Counter Terrorism Center before becoming acting DNI. He was “disappointed” that Schiff “demanded the production of sensitive and potentially privileged materials within fewer than two business days,” his lawyer said in a letter Thursday to Schiff.
In a September 13 letter, Klitenic laid out the DNI’s legal reasoning behind withholding the whistleblower complaint.
The letter acknowledged that the inspector general for the intelligence community, Michael Atkinson, believed the complaint constituted an “urgent concern” under the federal law that protects intelligence community whistleblowers. Under such circumstances, the law requires that the complaint be turned over to the Congressional intelligence committees.
But when Atkinson sent the complaint to the DNI for review, the letter says, DNI officials balked. They did not believe the complaint met the definition under the law, the letter said, because it dealt with “conduct by someone outside the Intelligence Community and did not relate to any `intelligence activity within the responsibility and authority of the DNI.'”
In his letter to Maguire accompanying the subpoena, Schiff called that “a radical distortion of the stature that completely subverts the letter and spirit of the law.”
He said his staff believed this was the first time the DNI sought to overrule the inspector general and withhold a whistleblower complaint from Congress.
Klitenic responded by citing an Obama administration opinion in 2010 that “if this bill were read to give Intelligence Community employees unilateral discretion to disclose classified information to Congress, it would be unconstitutional.”
He also cited a signing statement by President Bill Clinton, whose signature enacted the law, that the statute did not constrain the president’s ability to withhold classified information from Congress.
He added, “The information within the present complaint … is different in kind from that involved in any past cases of which we are aware. The present complaint does not allege misconduct within the Intelligence Community or concern an intelligence activity subject to the authority of the DNI. Furthermore, because the complaint involves confidential and potentially privileged communications by persons outside the Intelligence Community, the DNI lacks unilateral authority to transmit such materials to the intelligence committees. Therefore, the DNI determined not to transmit this confidential information to the intelligence committees.”
Ken Dilanian is a correspondent covering intelligence and national security for the NBC News Investigative Unit.