IG council says the opinion could have a “chilling effect” on future whistleblowers, asks Justice to reconsider.
Inspectors general across the federal government in a letter made public Friday rebuked the Justice Department for its legal opinion that the whistleblower complaint about President Trump’s July call to the president of Ukraine was not an “urgent concern.”
The Council of the Inspectors General on Integrity and Efficiency repudiated a Sept. 3 memo by the Office of Legal Counsel, a division of the Justice Department, arguing the memo’s conclusion that the whistleblower’s complaint was not urgent ran contrary to intelligence community inspector general Michael Atkinson’s determination. It was wrong for the Trump administration to try to keep the complaint secret at first and not turn it over to Congress, the inspectors general wrote in their letter to Office of Legal Counsel’s assistant attorney general.
“OLC’s opinion undermines the independence of the [Intelligence Community Inspector General] and wrongly interprets the respective roles and responsibilities of [inspectors general] and agency heads under the [Intelligence Community Whistleblower Protection Act],” the IG council wrote. This “creates uncertainty for federal employees and contractors across government about the scope of whistleblower protections, thereby chilling whistleblower disclosures.”
The letter, written by Council of the Inspectors General on Integrity and Efficiency Chairman Michael Horowitz and Vice Chair Allison Lerner, was co-signed by 65 permanent and acting inspectors general, including all the IGs from the intelligence community and Justice and Defense departments. It called for the Office of Legal Counsel to reconsider its opinion.
“You can’t have a decision being made by an [inspector general] being second guessed by the head of the agency, said Kel McClanahan, attorney and executive director of National Security Counselors, a public interest law firm that specializes in national security. He said it’s “huge” for the council to “speak in one voice and say this is wrong.”
The letter “demonstrates the unified and collective posture against the Trump administration by the inspectors general leadership, the largest group of independent senior government officials with statutory authority and responsibility for government accountability and oversight,” said Steve Katz, former counsel to what is now the Senate Homeland Security and Governmental Affairs Committee and former chief counsel to the Merit Systems Protection Board. “More vigilance by the U.S. Senate and U.S. House of Representatives is needed to support the laws it oversees for this purpose,” he added.
Danielle Brian, executive director of the nonprofit Project on Government Oversight, noted that Office of Legal Counsel opinions are judgments of the Justice Department that are not binding. “I was very happy to see such an authoritative takedown on an OLC opinion,” she said. The “[Inspector General] community rising up in response” to an Office of Legal Counsel opinion was important for the public to see because “this is not a community of public officials that search out this kind of conflict.”