Whistleblowers and the Rule of Law

In the United States, law students learn that law is both substance and process. Substance is the proscription or obligation and process is the mechanism for enforcing compliance. Absent a compliance enforcement mechanism, the substance is of no consequence. An unenforced law is tantamount to no law at all.

Americans obsess about the process mechanism’s fairness and enforcement logistics.  Consistent with our entrenched mistrust for government, evidenced by the checks and balances of our three-branch government, we do not leave matters solely in the hands of politicians. Our laws also allow for citizen participation in enforcement. Major pieces of legislation including our civil rights, environmental, antitrust, and housing laws allow individuals to bring suits to enforce law. Not only do citizen suits leverage compliance enforcement, they also ensure compliance when government prosecutors lack the resources or the political motivation to enforce the law.

Our legal history is replete with examples of sweeping reform generated, not only by legislative bodies, but also by individuals and their lawyers making themselves heard through the legal system. Landmark cases including Brown v. Board of Education of Topeka[1], Loving v. Virginia[2], and Cleveland Board of Education v. LaFleur[3] were initiated by individuals and led to the eradication of discriminatory practices. These cases are testaments to the power of one person represented by (at times) overworked and inexperienced lawyers motivated by the fear of failure and the passion to do good.

Our rule of law is special because it provides mechanisms for individuals to effectuate change. Such mechanisms are essential when elected officials fail to act or when the accepted practices of reputable institutions – including large corporations – harm the voiceless. The people who ask hard questions and shed light on impropriety are called “whistleblowers.” A myriad of laws protect whistleblowers from retaliation and some laws – including the qui tam provisions of the federal False Claims Act – reward considerable risk-taking. We owe a debt of gratitude to those who stuck their neck out and blew the whistle; they are responsible for safer products, a healthier environment, and a more trustworthy government.

Now Congress – relying on a confidential report made by a whistleblower to the Office of the Inspector General of the Intelligence Community– is investigating whether the President sought the help of the Ukrainian government to investigate his political opponent, Joe Biden. The process established by the rule of law is now in motion. The inspector general investigated the whistleblower’s concerns and the matter has moved forward to another branch of government for oversight and possible corrective action. This is fully consistent federal law.[4]

For the important role they play, whistleblowers should be considered more American than apple pie. But that is not how they are always treated. Consider President Trump’s tweet from October 9, 2019: “[t]he Whistleblower’s facts have been so incorrect about my no pressure conversation with the Ukrainian President, and now the conflict of interest and involvement with a Democrat Candidate, that he or she should be exposed and questioned properly. This is no Whistleblower...”

President Trump fails to appreciate the process governing whistleblowing, let alone intelligence community whistleblowing. If he wanted to educate himself, he need look no farther than his own appointee’s website. The Office of the Director of National Intelligence website contains this message from Inspector General Michael Atkinson:

“Whistleblowing has a long history in this country. Over 240 years ago, on July 30, 1778, the Continental Congress unanimously enacted the first whistleblower legislation in the United States, proclaiming that "it is the duty of all persons in service of the United States, as well as all other the inhabitants thereof, to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which comes to their knowledge." To this day, Federal law (including the Constitution, rules, and regulations) encourages, consistent with the protection of classified information (including sources and methods of detection of classified information), the honest and good faith reporting of misconduct, fraud, misdemeanors, and other crimes to the appropriate authority at the earliest time possible.”

Consistent with efforts to chill the whistleblowing tradition, the President of United States now demands disclosure of the whistleblower’s identity, an examination under oath, and exposure of biases. Here again, the President fails to appreciate the role of whistleblowers. Sometimes – as is the case here – whistleblowers are merely a catalyst causing regulators or legislators to scrutinize a situation, gather evidence, and judge the facts against the law. The whistleblower may raise an issue based on information that would be inadmissible under the Federal Rules of Evidence. It is the ensuing investigation, document collection, and witness interviews that matter. Afterwards, whistleblower testimony or bias is irrelevant.

By analogy, the whistleblower is no more than a booster rocket propelling the space shuttle into orbit, or in the legal world, a trial. A whistleblower may very well be motivated by bias; perhaps they did not get all the facts right. Yet, what is put before the trier of fact is not necessarily whistleblower testimony, but evidence gathered because a whistleblower caused an investigation.

In the current situation, the whistleblower’s allegations generated enough concern to motivate an investigation of what may be unimpeachable admissible evidence. Whatever the outcome of the Congressional investigation, we will have seen the rule of law at work, with its role for individuals and countervailing branches of government. It is a system where -- on any given day – the nation’s most powerful person can be called to account by an individual who thoughtfully raised questions. For those studying these current events, this is once again a lesson in how individual whistleblowers are essential to our legal tradition.

[1] Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), supplemented sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955).

[2] Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967).

[3] Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974).

[4] 50 U.S.C. § 3033.

Ukrainegate Is Impeachable. But So Is Putting Kids in Cages

This blog was originally published on Common Dreams. 

ACS is publishing a series of blogs in a symposium that examines different legal aspects of the impeachment inquiry of President Trump. See also:

President Trump’s Ukraine scandal has resulted in growing support for impeachment—as it should. But as Congress begins to get serious about holding Trump accountable, it must not lose sight of the kids in cages. That’s because, contrary to some naysayers, racist abuse of office—just like corruptly pressuring a foreign power for the president’s own benefit—is also grounds for impeachment. As our recent report When is Racist Abuse of Office an Impeachable Offense? shows, the text, history, and theory of impeachment all point to this conclusion.

Separating the merely deplorable from the positively impeachable

There’s a common misconception that impeachable offenses need to be prosecutable crimes. But the constitutional phrase “high Crimes and Misdemeanors” has long included abuses of office that don’t necessarily violate a criminal statute. In fact, Congress’s very first case of impeachment and removal (in 1804) didn’t involve a criminal statute.

Rather, as Alexander Hamilton wrote in the Federalist Papers, impeachable offenses “relate chiefly to injuries done immediately to the society itself.” For Trump’s racist rhetoric and action, the injuries to society are clear enough. Besides the suffering of the victims of his bigoted policies, experts have quantified the “Trump Effect”—measurable increases in racial violence and hostility associated with Trump rhetoric. But an issue, until now, has been the lack of a principled constitutional framework for determining when these injuries to society cross the line into impeachable territory.

The best place to start is the Constitution’s requirement that the president “take Care that the Laws be faithfully executed.” Those laws include the Constitution’s Equal Protection Clause, which provides that the government cannot—and therefore the president must take care that it not—“deny to any person within its jurisdiction the equal protection of the laws.” Obviously, the president isn’t responsible for every single equal protection violation. But he must at least try to ensure that the Equal Protection Clause is followed. And if he actively undermines the Equal Protection Clause, whether by deed or word, that violates the Take Care Clause.

Three categories of impeachable racist abuse of office

At minimum, counselling members of the armed forces or federal or state law enforcement officers to commit illegal violence—such as by suggesting that soldiers execute prisoners of war, or that police officers hurt people taken into custody—crosses the line into high crimes and misdemeanors. (The late Charles Black Jr. gave a variation of this as a hypothetical in his classic text on impeachment, probably not imagining that President Trump would test the principle.) There is no sense in which advocating illegal government violence can be said to “take care” that the laws be faithfully executed.

More subtly, the Take Care Clause also prohibits the president from using his bully pulpit to encourage private citizens to discriminate or commit violence against disfavored groups. This isn’t about criminally prosecuting the president; the First Amendment imposes a stringent standard on “incitement” prosecutions, and most Trump speeches don’t quite cross that line. But that’s not the question. The issue is when Congress should hold him accountable for violating his duty to take care that the Equal Protection Clause be faithfully executed.

Constitutional law provides two useful principles to answer that question. First, the Supreme Court has long held that government action based on a desire to harm a “politically unpopular group,” such as undocumented immigrants, violates the Equal Protection Clause. Second, the government is responsible for harm caused by third parties when government misconduct “places a person in peril in deliberate indifference to their safety.” Presidential action or speech that undermines or violates these principles, such as by repeatedly trumpeting the language of violent white supremacists, doesn’t “take care” that these protections be faithfully executed. (There’s precedent in Congress’s tenth article of impeachment against President Andrew Johnson, which cited Johnson’s feverish, violence-inspiring rant blaming a white-led massacre on congressional efforts to extend the vote to black people.)

Finally, while as a general matter policy differences don’t give rise to impeachable offenses, the Constitution itself isn’t a policy preference. When a president implements a pattern of government actions that are motivated entirely by bigotry—such as putting kids in cages, and other immigration policies based on his insistence that Latino immigrants are “rapists” while Haiti and African countries are “s—hole countries”—this intentional discrimination so undermines the Equal Protection Clause that it becomes an impeachable Take Care Clause violation as well. (Secret tapes aren’t necessary: as the Supreme Court has emphasized, “discriminatory purpose may often be inferred from the totality of the relevant facts.”)

Why does this matter?

These racist abuses of office aren’t the only ground for impeaching President Trump. But as scholar Keith Whittington has explained, a key purpose of impeachment is “to articulate, establish, preserve and protect constitutional norms.” In 1790, George Washington reassured the worried Hebrew Congregation of Newport, Rhode Island that the United States government “gives to bigotry no sanction, to persecution no assistance.” No modern president has done so much to undermine that norm as Donald Trump. And if we don’t draw the line here, we miss the opportunity to reestablish that norm. Do we really want to send future presidents the message that, so long as they don’t pressure foreign governments to punish their political opponents, they can put children in internment camps?

An article of impeachment for racist abuse of office (alongside other well-established grounds) won’t completely repair the injuries that Trump has already caused to our society. But it would delegitimize his stream of abuse as the official voice of the United States—and perhaps reduce the flames before there’s a conflagration.

There’s Nothing Special About an Impeachment Inquiry, and Congress Risks Harm to Itself When It Acts Otherwise

ACS is publishing a series of blogs in a symposium that examines different legal aspects of the impeachment inquiry of President Trump. See also:

Three House committees took a dramatic step on Friday to escalate the ongoing clashes between Congress and the White House over congressional investigation and oversight authority. The committees issued a joint subpoena to Secretary of State Mike Pompeo for information related to President Trump’s effort to strongarm Ukranian President Volodymyr Zelensky into investigating Joe Biden and his son. While the committee previously subpoenaed this same information under their routine investigatory and oversight power, Friday’s move was different: the committees for the first time invoked the House’s impeachment authority.

The move raises an important question for our system of checks and balances: does Congress have more power to investigate the administration when it relies on its impeachment authority than when it relies on its ordinary investigation and oversight authority?

The answer: no. And by acting otherwise, Congress only risks harm to robust power to engage in everyday investigations and oversight.

Constitutionally speaking, there is no difference in kind between Congress’s power to engage in routine investigations and oversight of the administration, on the one hand, and its power to impeach, on the other. Both are powers that the Constitution gives to Congress. And both operate as significant checks on the executive branch. Moreover, routine investigations and oversight can lead to impeachment just as certainly as an impeachment inquiry can lead to impeachment. There is no constitutional dividing line between the two, and there is no constitutional trigger that signals when Congress moves from its routine oversight role into its impeachment-investigation role. Unless the House adopts special rules for an impeachment inquiry—something not required by the Constitution—the two powers are the same, serving the same purpose: to check the President.

You might say that the two powers are different because one goes to Congress’s general lawmaking function, and the other goes to its unique law-enforcement function (of impeachment). But this claim unduly stovepipes Congress’s various authorities, which aren’t distinct, but instead are complementary. Congress certainly has the power to make laws, and to engage in fact-finding and investigations to that end. But it also has the power to investigate and oversee how its laws are enforced by the executive branch, and to investigate and oversee how the executive branch is using the funds that Congress appropriated. Ultimately, Congress has the power to impeach executive officials for “high crimes and misdemeanors.” In short, Congress’s routine powers to investigate and oversee the executive branch aren’t limited only to serve its lawmaking function; they also serve as an important check on the executive branch, ultimately serving an impeachment inquiry.

If there is a difference between routine investigation and oversight and an impeachment inquiry, it is a difference in magnitude, not kind. After all, impeachment can lead to an official’s removal from office (if convicted in the Senate). But any difference in magnitude can’t mean that congressional authority to engage in routine investigations and oversight is less than its power to investigate a possible impeachment. That’s because at the point of an impeachment investigation, Congress is still just investigating. Again, unless the House offers up special rules for an impeachment investigation—and again, something not required by the Constitution—then its powers to investigate and oversee routine matters is the same as its power to investigate impeachment.

Some say that congressional authority to investigate a possible impeachment is greater because an impeachment investigation neutralizes the three constitutional arguments that the Trump administration has lodged in stonewalling routine House investigations and oversight. First, the administration says that congressional requests are merely designed to embarrass the President and therefore have no “legitimate legislative purpose.” Next, it claims that the nature of the congressional requests show that Congress is engaged in law-enforcement, not law-making, in violation of the separation of powers. Finally, the administration asserts its newly expanded, but grossly deformed, version of executive privilege.

But these arguments, or close variations, apply with equal force against an impeachment inquiry. As to the first, that House investigations serve no “legitimate legislative purpose,” the administration can simply claim in a similar vein that House impeachment inquiries serve no legitimate impeachment purpose. In particular, the administration can claim that inquiries aren’t tailored to obtain information going to “high crimes and misdemeanors.”

As to the second, that congressional inquiries signify impermissible law enforcement, the administration can similarly argue that impeachment inquiries represent impermissible law enforcement. For example, the administration can claim that impeachment inquiries may seek to root out ordinary, or “low,” crimes, but not “high crimes and misdemeanors.” The administration can argue that it’s not Congress’s job to enforce those “low” crimes.

Finally, as to the third, that routine inquiries impermissibly encroach upon executive privilege, the administration can make the exact same claim with regard to impeachment inquiries. The administration can argue that executive privilege protects certain communications, information, and testimony whether requested in the context of a routine congressional inquiry or an impeachment inquiry. And given the administration’s gross expansion of executive privilege, it surely will make these arguments.

Thus, the administration’s constitutional arguments against routine congressional investigations and oversight apply with equal force against an impeachment investigation. The fact that Congress has moved into an impeachment inquiry doesn’t fundamentally neutralize them. And they therefore don’t mean that Congress has greater power to engage in an impeachment inquiry.

The real problem with these arguments is that they are frivolous. They undermine neither Congress’s routine investigation and oversight authority nor its impeachment inquiry authority.

As to the first, the Supreme Court has recognized Congress’s power to engage in routine investigations both in aid of its lawmaking power and also to oversee the executive branch’s enforcement of the law. And it has given wide berth to Congress in exercising this power. Put plainly, almost any congressional inquiry can serve a “legitimate legislative purpose.”

As to the second, congressional investigations for any purpose simply do not amount to impermissible law enforcement. By definition, they can’t. Impermissible law enforcement would require Congress to do something more, like take a truly extraordinary step of appointing its own prosecutor and initiating actual enforcement proceedings. Routine congressional inquiries to the Trump administration don’t even come close to that level of law enforcement.

As to the third, this administration has stretched executive privilege beyond all recognition in its dogged efforts to shield information from Congress. The Trump administration has invoked executive privilege on behalf of a far wider range of individuals and communications than the courts have recognized. And the administration has invoked it categorically and prospectively (before even learning of the precise congressional request), contravening plain court rulings and the very nature of a privilege.

None of these arguments carry any weight, either against routine congressional investigations and oversight, or against an impeachment inquiry.

But by acting as if an impeachment inquiry neutralizes these specious arguments, Congress risks validating them. In other words, when Congress invokes its impeachment inquiry as a stronger basis for obtaining information from the administration, it risks implicitly acknowledging the force of these arguments against its routine investigations and oversight.

More generally, by treating an impeachment inquiry as a stronger basis for obtaining information, Congress risks diminishing its routine investigation and oversight powers. But those powers are robust—every bit as robust as its power to engage in an impeachment inquiry. By treating the powers differently, Congress risks undermining its own authority to engage in routine investigations and oversight in the future.

All this isn’t a reason not to investigate possible impeachment. Given the evidence, Congress should move ahead. But it should also acknowledge that its power to engage in routine investigations and oversight is every bit as strong as its power to investigate possible impeachment. And it should continue to press the administration in the courts to comply with its many outstanding routine requests.

Executive Privilege and Impeachment 

This blog is one in a series of blogs in a symposium examining different legal aspects of the impeachment inquiry of President Trump. View the entire Impeachment Blog Symposium.

Mike Pompeo has signaled that he plans to invoke executive privilege to avoid disclosure of statements or documents relevant to impeachment. This will raise a crucial constitutional issue – whether executive privilege can be invoked to hinder an impeachment proceeding. There is a strong case that executive privilege should not limit disclosures to relevant House Committees in the impeachment context.

The Supreme Court has never held that executive privilege applies in the impeachment context. Instead, it created the privilege in the context of a dispute about discovery of communications between President Nixon and White House advisors in a criminal case not aimed at Nixon himself, but at his advisors and campaign staff. Nixon was only an unindicated co-conspirator in that case. Because of the case’s context, the Court focused on balancing the President’s confidentiality interests against the judicial system’s need to reach a just verdict in a criminal case.

In the context of a criminal case, it held that the privilege cannot trump the need to disclose information essential to reaching a just verdict. If executive privilege applied in the impeachment context it could not block disclosure of information essential to the impeachment inquiry. The Supreme Court rejected the notion that executive privilege is an absolute privilege in United States v. Nixon. The case for allowing the executive branch to withhold essential information is even weaker in the impeachment context than in the criminal trial context.   Executive privilege cannot prevent disclosure of information essential to resolving the inquiry into whether the House should impeach the President and the Senate should remove him from office.

It follows that the executive branch cannot refuse to disclose information demanded by congressional entities investigating or carrying out impeachment or removal. Rather, Congress would have to judge whether information it received should be disclosed to the public in light of the considerations that animate executive privilege in the criminal context. Several principles support this conclusion.

First, impeachment is, in part, a political process. Congress must make an informed political judgment about whether the President’s conduct betrays the public trust in such a serious way as to make him unfit to remain in office. Informed political judgment requires that executive branch officials must disclose any information arguably relevant to such an inquiry. Because impeachment necessarily requires value choices by politicians with varying views about what betrayal of the public choice is, the essentiality decision cannot partake of the neat logic possible when a single judge makes a ruling about violation of a carefully defined offense under the criminal code. There must be broad latitude in making the essentiality judgment.

The second principle relevant to whether executive privilege should exist in this context involves the need to give proper weight to the impeachment process itself. The Nixon Court required disclosure of matters essential to resolution of a criminal case, because of the weighty due process concerns at issue in deciding whether to convict officials accused of crimes. Making sure that the impeachment process is fully informed is an even more weighty consideration. Impeachment is intended as a remedy to prevent a reversion to despotism. The Framers put impeachment in the Constitution to make sure that the rule of law survived, not just for a few individuals, but for all Americans. It safeguards the entire democratic system upon which liberty depends.

The third principle stems from the rarity of impeachment, which has only occurred twice before in our history (not counting the Nixon resignation). Allowing disclosure of all information even arguably relevant to an impeachment inquiry would not generally impair the executive branch’s operation. The Nixon Court based executive privilege on the need to protect candid communication between the President and his advisors. But Presidents rarely engage in conduct that necessitates impeachment, so a rule of full disclosure in the face of impeachment will not limit candid advice in the overwhelming majority of cases. Although criminal conduct by the President and his aides is not common either, it is much more common than presidential bribery, treason, or high crimes and misdemeanors. And most of those advising a President so unfit for public office as to potentially merit impeachment will likely offer candid advice even if disclosure might ensue, as they would want to counsel him to stay within the law. Furthermore, we want to discourage advisors from encouraging Presidents to violate their oath of office. Impeachment with no executive privilege would reinforce officials’ obedience to their constitutionally required oath of office, which demands that they swear obedience not to the President, but to the Constitution. In other words, we want to discourage candid advice about how best to evade the law or serve a foreign power to which a corrupt President is beholden (something mentioned by the Framers as a central concern).

The rarity and importance of impeachment should generally outweigh even the need to protect information vital to national security. The Nixon Court suggested that information damaging to our national security provides a stronger case for confidentiality than other kinds of material. But the Framers established impeachment, in part, to prevent a President beholden to a foreign power from remaining in office. In other words, it was designed to protect our national security from a disloyal President, even one who commits treason. Therefore, the need for the material necessary to resolve an impeachment inquiry must take priority over other information that might in some way temporarily damage our national security. Impeachment provides the defense against permanent destruction of the Republic, the very quintessence of what national security is all about.

The President cannot withhold information based on executive privilege even if he wishes to assert that the privilege applies. Initiation of an impeachment inquiry suggests that many elected representatives believe that the President may not be trustworthy. The inquiry exists to address problems like self-dealing and betrayal. A President meriting impeachment is very likely to abuse executive privilege or to interpret it generously in his favor. Furthermore, since impeachment is the remedy for treason, the procedures governing it must permit quick action when necessary, unobstructed by a self-interested President. Therefore, the President should turn over all information requested by relevant House committees, while noting which information it thinks should not be publicly disclosed and why. If the President resists, the courts should promptly order full disclosure to the relevant House committees, but not necessarily the public.

The question then arises about whether the House committees gets to decide questions of whether it should keep information the President regards as privileged, confidential, or instead, the courts should resolve them. Nixon held that the courts should decide questions of privilege when the President asserts the privilege as a defense to discovery in a criminal case. It is not obvious that the courts should adjudicate presidential claims that the House should keep information it finds pertinent to its impeachment inquiry confidential, which necessarily arise outside of an ongoing court proceeding.

Separation of powers principles, practicality, and precedent counsel against the courts intervening to limit public disclosure of information in an impeachment proceeding. The Supreme Court has held that the Constitution commits questions of how to conduct an impeachment to Congress and that questions relevant to how Congress proceeds are therefore non-justiciable political questions. That principle would imply that the Constitution itself commits the issue of how much relevant information to disclose to the public to Congress when it commences an impeachment proceeding. Information, after all, is the center of a rational impeachment decision. If the Supreme Court ends up with an executive privilege issue, it should not undertake a balancing of the information needs of Congress against that of the President. It should simply hold that executive privilege does not apply in this context, but suggest that the Congress should consider the impact of public disclosure on national security and appropriate candid advice (which it will be inclined to do anyway).

More broadly, Mike Pompeo mentioned separation of powers concerns with information disclosure. While it is common to speak of separation of powers and checks and balances in one breath, in fact, they are in tension. The Constitution does not completely separate powers. It requires checks that breach the wall between branches. Impeachment, of course, constitutes the ultimate check and balance. It empowers Congress to removal any official of the other branches of government for betraying the public trust. Like all checks, it stands as an exception to the rule of rigidly separated powers. And honoring this check especially is crucial to the Constitution’s survival.

Impeachment’s importance as a check on a dangerous President suggests that executive privilege cannot apply once an impeachment proceeding begins. Allowing it to apply constitutes an unconstitutional interference with the congressional authority to determine how to process impeachments.

Barr Should Recuse Himself from All Things Ukraine

This blog is one in a series of blogs in a symposium examining different legal aspects of the impeachment inquiry of President Trump. View the entire Impeachment Blog Symposium.

When I served as U.S. Attorney for the Eastern District of Michigan, President Barack Obama told all me and my colleagues to always remember that we did not represent him, but that we represented the American people and the Constitution. If only William Barr had heard that message.

The whistleblower complaint regarding President Donald Trump’s dealings with Ukraine raises concerns about Barr’s performance of his duties as attorney general. At the very least, by failing to recuse himself from the matter, Barr is undermining the credibility of the Department of Justice.

In August, a whistleblower filed a complaint with the Inspector General of the Intelligence Community describing a series of acts that included a July 25 telephone call between Trump and Ukrainian President Volodymyr Zelensky. The whistleblower alleges facts suggesting that Trump attempted to use $391 million in U.S. military aid to Ukraine as leverage to get Zelensky to agree to investigate Joe Biden, a candidate to unseat Trump in the 2020 election.

During the call, Trump suggested that Zelensky work with Trump’s private attorney, Rudolph Giuliani, as well as Barr on the investigation. “I will have Mr. Giuliani give you a call, and I am also going to have Attorney General Barr call, and we will get to the bottom of it,” Trump said, according to the summary. The Department of Justice has issued a statement that Barr, in fact, did not talk to anyone in Ukraine about this matter or any other subject. Even so, the inclusion of Barr’s name in the report created a conflict that should have caused him to recuse himself from the matter.

Pursuant to the Intelligence Community Whistleblower Protection Act of 1998, the Inspector General for the Intelligence Community must investigate an internal complaint and determine whether it is credible and of “urgent concern.” IG Michael Atkinson concluded that this complaint met both requirements, and passed the complaint and his findings to the acting Director of National Intelligence Joseph Maguire. Under the statute, the DNI “shall” forward the complaint to the congressional intelligence committees upon such a finding. Instead, acting DNI Joseph Maguire went to the White House and the Department of Justice for advice about how to proceed, undermining the very purpose for whistleblower laws. In other words, the acting DNI went to the very subjects of the whistleblower’s complaints to ask if the complaint should be shared with Congress.

Despite the mandatory language of the text of the statute, DOJ determined that the law did not require disclosure of the whistleblower’s complaint to Congress. Steven Engel, the Assistant Attorney General for the Office of Legal Counsel at the Department of Justice, signed a legal opinion concluding that the whistleblower’s complaint need not be shared with Congress because the complaint did not meet the technical definition of “urgent concern.” He reasoned that alleged presidential misconduct in a classified telephone call is not an intelligence activity, and that the president is not a member of the intelligence community. Therefore, he concluded, the reporting requirement to Congress was not triggered. He concluded instead that the complaint should be shared with the Criminal Division of the Department of Justice to decide whether any crimes had been committed. DOJ’s Criminal Division reportedly reviewed the matter and concluded that it did not violate campaign finance laws.

This process seems wrong on a number of levels. First, it seems overly narrow to conclude that a matter that comes to a member of the intelligence community in the course of performing his official duties does not constitute an intelligence activity, or that the president, who has the power to classify and declassify information, is not a member of the intelligence community. Second, even if one were to agree with Engel’s analysis, the law does not permit the DOJ to second guess the IG. The language of the statute assigns the decision to the IG. Upon his conclusion of the complaint’s credibility and urgent concern, the requirement to disclose it to Congress is mandatory. Third, in light of the DOJ policy that a sitting president cannot be charged with a crime, as we learned from Special Counsel Robert Mueller’s investigation, framing this matter as a criminal investigation is futile. Instead, allegations of presidential misconduct should be framed as a potential impeachment matter, further supporting the conclusion that it must be shared with Congress. Finally, even if the matter is appropriate for consideration of criminal charges, members of the Trump administration have a conflict of interest in considering whether Trump has committed a crime, and would need to request the appointment of a special counsel.

DOJ spokeswoman Kerri Kupec has said that Barr was not involved in Engel’s decision but did not recuse himself from the matter.

Under government ethics rules, recusal is appropriate if “a reasonable person with knowledge of the relevant facts would be likely to question the employee’s impartiality in the matter.” The need for Barr to recuse here is obvious. Barr’s name is included in the report as someone that Trump said he would assign to participate in activity that could amount to campaign finance violations, bribery, extortion or conspiracy to defraud the United States in the fair administration of elections. The public need not take Barr’s blanket denial as proof that he was not involved. In addition, even if one were to give Barr the benefit of the doubt that he did not, in fact, communicate with Ukraine, the inclusion of his name in the report is potentially embarrassing, creating an incentive to keep the report from Congress so that he does not have to answer questions about his own role. Conflict of interest rules exist not only to protect against actual conflicts, but also about perceived conflicts to avoid undermining public trust. The report creates at least the perception that Barr has such an incentive. A reasonable person with knowledge of these facts would be likely to question Barr’s impartiality in this matter.

In addition, as the investigation into these allegations unfold, the Department may be required to weigh in on other issues, such as whether members of the executive branch may assert executive privilege to prevent testimony or production of documents. Barr’s involvement in such decisions would undermine public confidence in the legal arguments.

Barr’s credibility is already on thin ice after his conduct as attorney general -- his decision that Trump did not engage in obstruction of justice after Mueller declined to reach a decision but found substantial evidence that he did, his parroting of Trump’s talking points that Mueller found “no collusion,” his reference to the FBI’s investigation into Russian election interference as “spying,” his investigation of the investigators, his arguably false testimony before the House that he did not know that Mueller’s team was frustrated with his characterization of the report, despite having received a letter so stating, and his evasive response to questions from Sen. Kamala Harris about whether the White House had ever suggested initiating any investigations.

Barr likely feels tremendous pressure not to recuse himself, after witnessing the treatment Jeff Sessions endured as attorney general after recusing himself from the Russia investigation. Trump’s laments that he lacked an attorney general to protect him, and his public yearnings for his "Roy Cohn" clouds public trust of the way Trump views the office of attorney general.

Barr needs to recuse himself from the whistleblower complaint and related matters to demonstrate that his office does not exist to protect the president, but to represent the people of the United States.

The Whistleblower vs. Trump's "Deep State": A Q&A with Jon Michaels

This interview with Professor Jon Michaels was conducted by Zachary Wolf and originally appeared on CNN.com.

President Donald Trump has long complained of a deep state of bureaucrats out to get him. He's argued that investigations into his unsettling activity are nothing more than witch hunts.

A top White House aide, Stephen Miller, on Sunday said that the whistleblower who raised concerns about Trump's pressure on Ukraine to investigate the Biden family was a "deep state operative."

Miller argued it's actually Trump who is the whistleblower because he has uncovered a government run amok and as a result his presidency has suffered from three years of "deep state sabotage."

Trump's entire presidency has been about taking a hammer to a layer of government we have built around ourselves. In his paranoid world view, he must do battle with a deep state. For much of the rest of the country, it is committed civil servants who help make society work.

So how will a whistleblower working through the bureaucracy affect Trump? We went to Jon Michaels, a law professor at UCLA and author of Constitutional Coup: Privatization's Threat to the American Republic, to ask about Trump's theory of a "deep state" and the health of the American bureaucracy under Trump.

The conversation below has been edited slightly. And it should be noted that Michaels is no fan of Trump and is a fan of federal workers, so he brings that perspective to his answers.

ZW: Early in the Trump administration you wrote a piece debunking the conspiracy theory that there's a "deep state" of entrenched bureaucrats bent on destroying Trump. What is your first reaction to a government worker utilizing a whistleblower law to raise the alarm about the President's behavior?

JM: My first reaction is this isn't the work of an insidious "deep state." It is, rather, the work of a functional, credible "state." This White House has done amazing work flipping narratives, demonizing patriots, and generally gaslighting the public. The people who contributed to the whistleblower report are no doubt longstanding, competent civil servants, who've worked for Democratic and Republican presidents alike. Some may have started in the Clinton or Bush years and thus have clearly spent at least long stretches of time subordinating their political preferences in service to the United States.

My second reaction is, if anything, the state isn't deep enough. Decades of marginalizing civil servants through privatization initiatives and now several years of President Trump attacking, pressuring, and reassigning highly competent officials in such offices as the State Department, the Department of Interior, and the EPA have created a bit of a brain drain and certainly a morale problem. Recall how the White House pressured NOAA to back the President's inaccurate claim that Alabama was indeed in the hurricane Dorian danger zone. That's nothing compared to the systematic efforts to, among other things, quash work on climate change.

ZW: We have seen multiple examples of government workers dealing with Trump in different ways. They have refused to follow his orders, as Sally Yates did before she was fired. They have resigned from his administration, as James Mattis did, over military policy. They have argued that influencing him from within is better, as anonymous did. Now we have a whistleblower. What is the proper course of action for a worker who disagrees with his or her President?

JM: I actually ask a version of this question to my law students (and hasten to add that I began asking that question years ago under President Obama!). There is no single answer to that question, and the diversity of options is a strength of our constitutional system -- and a testament to lawmakers who recognized there are many ways to speak truth to power.

Imagine if this whistleblower quit. I think it is fair to presume few would have ever noticed -- and none of us would be in any position to guess what alleged wrongdoing drove him or her to leave government. Imagine if this whistleblower penned an anonymous op-ed. There would be no one to the Intelligence Community Inspector General to affirm the grievance as credible. There is furthermore no reason to consider the disobediance option.The whistleblower had no statutory or constitutional authority over the conduct of American foreign policy. Accordingly, based on what we know at this date, I think the whistleblower used the most direct and most appropriate avenue available.

ZW: We all learn about the three equal branches of government in the Constitution (executive, legislative and judicial) and how they are, to varying degrees, responsive to voters. The Constitution doesn't say anything about the bureaucracy, but that's the front line of government most people interact with. And the bureaucracy is somewhat insulated from the people because most government workers will report for duty no matter who the President is or what Congress does. How does the modern bureaucracy square with the original vision of a federal government?

JM: If anything, the rise of the bureaucracy is a necessary and rule-of-law-protecting corollary to the rise of the powerful modern President, who has truly awesome sway over economic, social, diplomatic, and military affairs not only in the US but also around the world. (Remember the federal government of Washington, Hamilton, and Jefferson was very much a bit player at home and abroad -- and it was Congress, not the President, they feared might overreach.)

For those worried about bureaucracy, I would encourage them to think of the bureaucracy as an integral part of the new, modern separation of powers, reflective of a reality where Congress has marginalized itself (not just because of dysfunction and partisan gridlock but also because they've spent the better part of a century delegating more and more power to the president). And it is precisely these bureaucrats' distance from politics that gives them the clarity and independence to cry foul if something is deeply awry.

For those who worry about individual bureaucrats, my short answer is that they're more likely to be like you or me than they are to be economic "elites" that populate Congress and, often, occupy the White House.

And for those who worry about the power of groups of bureaucrats, it is important to recognize that the design of our bureaucracy actually makes it hard for employees across agencies to subvert popular will. Most bureaucratic work is siloed (with each agency, or even bureau within an agency, constituting its own silo). Again, something has to be deeply awry before multiple red flags are raised such that there could be even the semblance of coordinated resistance.

ZW: Do you feel like the bureaucracy has generally stood up to Trump? Is there evidence of an actual resistance?

JM: I'm clearly a pretty big believer in bureaucracy but when the history of the Trump presidency is written, the bureaucracy will be shown to have a mixed record. One story is surely about resiliency, professionalism, and restraint. But another story is about enabling. Donald Trump, Mick Mulvaney and Stephen Miller are not policing the detention centers. They're not riding shotgun on immigration raids. For all I know, those government workers who are doing such things are doing everything possible to act justly and humanely. But there's a lot of evidence to at least suggest otherwise. We haven't seen anything like mass resignations or even concerted work slowdowns. This apparent lack of grass-roots bureaucratic resistance does support my claim that the bureaucracy is indeed hard to mobilize in a concerted fashion, but what we're experiencing with respect to family separations, near-across the board denials of asylum, and inhuman conditions of detention strikes me as nothing short of an existential crisis, if not for the soul of our nation then at the very least for the legitimacy and credibility of a prominent federal agency and all who enable it.

ZW: We would not know about Trump's questionable behavior -- trying to use a foreign government against a domestic political rival -- if it weren't for the whistleblower. If Trump faces no consequences, what will that mean for the way the US government functions?

JM: First, I think there is already despair and disillusionment because neither legal nor political checks have done much to restrain or even embarrass a very dangerous presidency. As many have observed, the timing of the Ukraine call -- right after the apparent "end" of the Mueller investigation -- is especially disconcerting.

Second, I do think -- or at least hope -- we'll muddle through and that responsible actors will here and there step up to check the President's worst or most dangerous impulses.

Obviously all bets are off were the President to win reelection, as that would further embolden him to run roughshod over the rule of law (and send many a frustrated civil servant into early retirement).

How Trump has changed the government

ZW: Finally, we're almost three-quarters of the way through a four-year Trump term. Has he permanently changed the US government?

JM: Nothing's permanent, but I think President Trump has said and done many things that damage our commitment to the rule of law, diminish our international standing and security, and hamper our efforts to overcome our vile history of racism, misogyny, and lgbt discrimination. But to stay on topic, I think I would say that Trump has changed the public's relationship with truth and expertise. There have always been conspiracy theories. But he's indulged and endorsed people, organizations, and publications that traffic in flat-out lies and deny scientific facts. And by making government officials party to this mindset -- think about the Justice Department and Attorney General Barr's dismissiveness over the Mueller report and the whistleblower report -- he has now given the rest of us real reason to question the objectivity and authority of government. It's disastrous. Again, nothing's permanent -- but it may well take decades to repair the damage.