Christine L. Coogle
88 Geo. Wash. L. Rev. 1221
In September 2019, the Department of Justice Office of Legal Counsel (“OLC”) issued an opinion concluding that the Director of National Intelligence had the authority to withhold from Congress an intelligence-community whistleblower complaint that alleged an abuse of power by the President and misconduct on the part of several of his advisors. The opinion purported to override a determination by the independent intelligence-community inspector general, based on OLC’s interpretation of the statutes that set forth the process for intelligence-community officials to disclose executive misconduct to the congressional intelligence committees. This Essay examines the relevant whistleblower statutes and demonstrates that OLC’s interference in the whistleblower-disclosure process was contrary to the carefully prescribed statutory framework because it undercut the independent authority of the inspector general, which is crucial to the statutory objective of encouraging government whistleblowers. The Essay then looks to two previous OLC opinions in the whistleblower context to assess whether they provide any support for OLC’s actions in 2019. Far from bolstering OLC’s 2019 opinion, the earlier OLC whistleblower opinions and the congressional reactions to those opinions underscore precisely how the 2019 opinion, in light of the relevant statutory framework, was impermissible. In disregarding the independent authority of the inspector general, OLC destabilized the statutory disclosure process and directly undermined the core purpose of the intelligence-community whistleblower statute.
