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Acting Intel Chief Testifies About Whistleblower Complaint; Whistleblower: Trump Tried To Get Ukraine To Interfere In Election, And White House Tried To Cover It Up. Aired 9:30-10a ET

Aired September 26, 2019 - 09:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

SCHIFF: And you may take as much time as you need.

MAGUIRE: Thank you very much, Mr. Chairman.

Chairman Schiff, Ranking Member Nunes and members of the committee, good morning.

I'd like to begin by thanking the chairman and the committee for agreeing to postpone this hearing for one week. This provided sufficient time to allow the executive branch to successfully complete its consultations regarding how to accommodate the committee's request.

Mr. Chairman, I've told you this on several occasions and I would like to say this publicly: I respect you, I respect this committee and I welcome and take seriously the committee's oversight role.

During my confirmation process to be the director of the National Counterterrorism Center, I told the Senate Select Committee on Intelligence that congressional oversight of the intelligence activities is critical and it's essential to successful operations with the intelligence community. Having served as the director of the National Counterterrorism Center for a eight months and as the acting director of national intelligence for the past six weeks, I continue to believe strongly that (sic) the role of congressional oversight.

As I pledged to the Senate, I pledge to you today that I will continue to work closely with Congress while I'm serving either in this capacity, as acting director of national counterterrorism, or when I return to the National Counterterrorism Center, to ensure you are fully and currently informed of intelligence activities, to facilitate your ability to perform your oversight of the intelligence community.

The American people expect us to keep them safe. The intelligence community cannot do that without this committee's support.

(CORRECTED COPY: CORRECTIONS THROUGHOUT)

MAGUIRE: Before I turn to the matter of (sic) hand, there are a few things I would like to say.

I am not partisan and I am not political. I believe in a life of service and I'm honored to be a public servant. I served under eight presidents while I was in uniform. I have taken the oath to the Constitution 11 times: the first time when I was sworn into the United States Navy in 1974 and nine times during my subsequent promotions in the United States Navy. Most recently, former Director Dan Coats administered the oath of office when I became the director of the National Counterterrorism Center.

I agree with you, the oath is sacred. It's a foundation of our Constitution.

The oath to me means not only that I swear true faith and allegiance to that sacred document, but more importantly, I view it as a covenant I have with my workforce that I lead and every American that I will well and faithfully discharge the duties of my office.

I come from a long line of public servants who have stepped forward even in the most difficult times and austere times to support and defend our country. When I took my uniform off in July of 2010, it was the first time in 70 years that an immediate member of my family was not wearing the cloth of the nation.

As a naval special warfare officer, I had the honor of commanding at every level in the SEAL community. It was, at times, very demanding, but the rewards of serving in American's special operations community more than make up for the demands.

After my retirement, I was fortunate to work for a great private sector firm. I left the business world after three years to lead a non-profit charity. Some question why I would leave a promising business career to run a charity. The answer was quite simple: It was another opportunity to serve.

I led a foundation dedicated to honoring the sacrifice of our fallen and severely wounded special operators. The foundation I led enabled hundreds of children of our fallen to attend college. It was extremely meaningful and rewarding.

In the winter of 2018, I was asked by former Director Dan Coats to return to government service to lead the National Counterterrorism Center. This request was totally unexpected and was not a position I sought. But then again, it was another opportunity to serve my country.

In particular, I knew that many of the young sailors and junior officers that I had trained 20 years earlier were now senior combat veterans, deploying and still sacrificing. I decided if they could continue to serve, returning to government service was the very least I could do. And now here I am sitting before you as the acting director of national intelligence.

With last month's departure of Dan Coats and Sue Gordon, two exceptional leaders and friends, I was asked to step into their very big shoes and lead the intelligence community until the president nominates and the Senate confirms the next director of national intelligence.

[09:35:00] I accepted this responsibility because I love this country. I have a deep and profound respect for the men and women of our intelligence community and the mission we execute every day on behalf of the American people.

Throughout my career, I have served and led through turbulent times. I have governed every action by the following criteria: it must be legal, it must be moral and it must be ethical.

No one can take an individual's integrity away; it can only be given away. If every action meets those criteria, you will always be a person of integrity.

In my nearly four decades of public service, my integrity has never been questioned until now.

I'm here today to unequivocally state that, as acting DNI, I will continue the same faithful and nonpartisan support in a matter that adheres to the Constitution and the laws of this great country as long as I serve in this position, for whatever period of time that may be.

I want to make it clear that I have upheld my responsibility to follow the law every step of the way in the matter that is before us today.

I want to also state my support for the whistleblower and the rights and the laws. Whistleblowing has a long history in our country, dating back to the Continental Congress. This is not surprising, because as a nation, we desire for good government, therefore we must protect those who demonstrate courage, to report alleged wrongdoing, whether on the battlefield or in the workplace.

Indeed, at the start of the ethics training in the executive branch each year, we are reminded that public service is a public trust, and as public servants we have the solemn responsibility to do what's right, which includes reporting concerns of waste, fraud and abuse, and bringing such matters to the attention of Congress under the Intelligence Community Whistleblower Protection Act.

I applaud all employees who come forward under this act. I am committed to ensuring that all whistleblower complaints are handled appropriately and to protecting the rights of whistleblowers.

In this case, the complainant raised a matter with the intelligence community inspector general. The inspector general is properly protecting the complainant's identity and will not permit the complainant to be subject to any retaliation or adverse consequences for communicating the complaint to the inspector general.

Upholding the integrity of the intelligence community and the workforce is my number one priority. Throughout my career I relied on the men and women of the intelligence community to do their jobs so I could do mine, and I can personally attest that their efforts saved lives.

I would now like to turn to the complaint and provide a general background on how we got to where we are today.

On August 26th, the inspector general forwarded a complaint to me from an employee in the intelligence community. The inspector general stated that the complaint raised an urgent concern, a legally defined term under Whistleblower Protection Act that has been discussed at length in our letters to the committee on September 16 and 17.

Before I turn to the discussion about whether the complaint meets the definition of urgent concern, I first want to talk about an even more fundamental issue.

Upon reviewing the complaint, we were immediately struck by the fact that many of the allegations in the complaint are based on a conversation between the president and another foreign leader. Such calls are typically subject to executive privilege.

As a result, we consulted with the White House Counsel's Office and we were advised that much of the information in the complaint was, in fact, subject to executive privilege, a privilege that I do not have the authority to waive.

Because of that, we were unable to immediately share the details of the complaint with this committee, but continued to consult with the White House counsels in an effort to do so.

Yesterday, the president released the transcripts of the call in question, and therefore, we are now able to disclose the details of both complaint and the inspector general's letter transmitted to us. As a result, I have provided the House and Senate Intelligence Committees with the full, unredacted complaint, as well as the inspector general's letter.

Let me also discuss the issue of urgent concern.

When transmitting the complaint to me, the inspector general took the legal position that because the complaint alleges matters of urgent concern, and because he found the allegations to be credible, I was required under the Intelligence Community Whistleblower Protection Act to forward the complaint to our oversight committees within seven days of receiving it.

[09:40:00] MAGUIRE: As we have previously explained in our letters, urgent concern is a statutorily defined term. To be an urgent concern, the allegations must, in addition to being classified, assert a flagrant, serious problem, abuse or violation of law and relate to the funding, administration or operation of an intelligent activity within the responsibility of the director of national intelligence.

However, this complaint -- this complaint concerns conduct by someone outside the intelligence community, unrelated to funding, administration or operation of an intelligence activity under my supervision. Because the allegation on the face did not appear to fall in the statutory framework, my office consulted with the United States Department of Justice Office of Legal Counsel and included -- we included the inspector general in those consultations.

After reviewing the complaint and the inspector general's transmittal letter, the Office of Legal Counsel determined that the complaint's allegations do not meet the statutory requirement definition concerning legal urgent concern, and found that I was not legally required to transmit the material to our oversight committee under the Whistleblower Protection Act. And a classified version of the Office of Legal Counsel memo was publicly released.

As you know, for those of us in the executive branch, Office of Legal Counsel opinions are binding on all of us.

In particular, the Office of Legal Counsel opinion states that the president is not a member of the intelligence community and the communication with a foreign leader involved no intelligence operation or activity aimed at collecting or analyzing foreign intelligence.

While this OLC opinion did not require transmission of the complaint to the committees, it did leave me with the discretion to forward the complaint to the committee. However, given the executive privilege issues I discussed, neither the inspector general nor I were able to share the details of the complaint at the time.

When the inspector general informed me that he still intended to notify the committees of the existence of the complaint, Mr. Chairman, I supported that decision, to ensure the committees were kept as informed as possible of this process move forward.

I want to raise a few other points about the situation we find ourselves in.

First, I want to stress that I believe that the whistleblower and the inspector general have acted in good faith throughout. I have every reason to believe that they have done everything by the book and followed the law, respecting the privileged nature of the information and patiently waiting while the executive privilege issues were resolved.

Wherever possible we have worked in partnership with the inspector general on this matter. While we have difference of opinions on the issue of whether or not it is urgent concern, I strongly believe in the role of the inspector general. I greatly value the independence he brings, and his dedication and his role in keeping me and the committees informed of matters within the intelligence committee (ph).

Second, although executive privilege prevented us from sharing the details of the complaint with the committees until recently, this does not mean that the complaint was ignored. The inspector general, in consultation with my office, referred this matter to the Department of Justice for investigation.

Finally, I appreciate that in the past whistleblower complaints may have been provided to the Congress regardless of whether they were deemed credible or satisfied the urgent -- the urgent concern requirement. However, I am not familiar with any prior instances where a whistleblower complaint touched on such complicated and sensitive issues, including executive privilege. I believe that this matter is unprecedented.

I also believe that I handled this matter in full compliance with the law at all times and I am committed to doing so, sir.

I appreciate the committee providing me this opportunity to discuss this matter and the ongoing commitment to work with the Congress on your important oversight role.

Thank you very much, sir.

SCHIFF: Thank you, Director.

Would you agree that the whistleblower complaint alleges serious wrongdoing by the president of the United States?

[09:45:00] MAGUIRE: The whistleblower complaint involved the allegation of that. but it is not for me and the intelligence community to decide how the president conducts his foreign policy or his interaction with leaders of other countries, sir.

SCHIFF: Well, I'm not asking you to opine on how the president conducts foreign policy. I'm asking you whether, as the statute requires, this complaint involved serious wrongdoing, in this case by the president of the United States -- an allegation of serious wrongdoing by the president of the United States. Is that not the subject of this complaint?

MAGUIRE: Yes, that is the subject of the allegation of the complaint. And two things, Mr. Chairman...

SCHIFF: And -- and let me ask you about that.

The inspector general found that serious allegation of misconduct by the president credible. Did you also find that credible?

MAGUIRE: I did not criticize the inspector general's decision on whether it not was credible. My question was whether it not -- whether or not it meets the urgent concern in the seven-day timeframe that would follow but so as notify...

SCHIFF: My question, Director...

MAGUIRE: I have no -- I have no -- no question in his judgment that he considered it a serious matter. The issue that I don't...

SCHIFF: Then you would -- you would concur, would you not, Director, that this complaint alleging serious wrongdoing by the president was credible?

MAGUIRE: It's not for me to judge, sir. What my...

SCHIFF: It is from you -- it is for you to judge apparently.

I mean, I agree it's not for you to judge. You shall provide it to Congress. But -- but, indeed, you did judge whether this complaint should be provided to Congress.

Can we -- can we at least agree that the inspector general made a sound conclusion that this whistleblower complaint was credible?

MAGUIRE: That is correct. That is in the cover letter that's been provided to the committee. I believe that's also been public, the decision and the recommendation by the inspector general that in fact that the allegation was credible.

SCHIFF: Can we also agree that it was urgent that if the president of the United States was withholding military aid to an ally even as you received the complaint and was doing so for a nefarious reason, that is to exercise leverage for the president of Ukraine to dig up manufactured dirt on his opponent -- can we agree that it was urgent while that aid was being withheld?

MAGUIRE: There's two -- there are things that...

SCHIFF: I'm talking about the lay -- the common understanding of what urgent means. Because the inspector general said this was urgent, not only in the statutory meeting, this was urgent as everyone understands that term. Can we agree that it was urgent?

MAGUIRE: It was urgent and important. But my job as the director of national intelligence was to comply with the Whistleblower Protection Act and to adhere to the definition of urgent concern, which is a legal term.

SCHIFF: And to adhere to the meaning of the term shall.

MAGUIRE: Yes, sir.

SCHIFF: In this case, you sought a second opinion of whether shall really means shall by going to the White House.

MAGUIRE: No, sir. There were two things, as I said in my statement.

One, it appeared that it also had matters of executive privilege. I am not authorized, as the director of national intelligence, to waive executive privilege.

SCHIFF: And at any time -- at any time over the last month that you held this complaint, did the White House assert executive privilege?

MAGUIRE: Mr. Chairman, I have endeavored...

SCHIFF: I think that's a yes-or-no question. Did they ever assert executive privilege?

MAGUIRE: They were working through the executive privilege procedures in deciding whether or not to exert privilege.

SCHIFF: And so they never exerted privilege, is that the answer?

MAGUIRE: If -- Mr. Chairman, if they did, we would not have released the letters yesterday and all of the information that has been forthcoming.

SCHIFF: Now, the first place you went was to the White House. Am I to understand that from your opening statement; it wasn't to the Department of Justice, the first place you went for a second opinion was to the White House?

MAGUIRE: I did not go for a second opinion. The question was, is the information contained here subject to executive privilege, not whether it not met urgent concern.

SCHIFF: And -- and so the first place you went for advice as to whether you should provide the complaint, as the statute requires, to Congress was the White House?

MAGUIRE: I am not authorized, as the director of national intelligence, to provide executive-privileged information. I think it is prudent, as a member of the executive branch, to check to ensure that in fact it does not.

SCHIFF: I'm just asking about the sequencing here. Did you first go to the White House to determine whether you should provide a complaint to Congress?

MAGUIRE: No, sir. That was not the question.

The question was whether or not it has executive privilege, not whether or not I should send it onto Congress.

SCHIFF: OK.

Is the first party you went to outside of your office to seek advice, counsel, direction, the White House?

[09:50:00] MAGUIRE: I have consulted with the White House counsel, and eventually we also consulted with the Department of Justice Office of Legal Counsel.

SCHIFF: And my question is, did you go to the White House first?

MAGUIRE: I went to the Office of Legal Counsel for advice, yes, sir.

SCHIFF: Well, I'm asking which you went to first. Did you go to the Department of Justice Office Legal Counsel first or did you go to the White House first?

MAGUIRE: I went to the Office -- excuse me.

My team, my office went to the Office of Legal Counsel first to receive whether or not the matter in the letter and in the complaint might meet the executive privilege. They viewed it and said, we've determined that it appears to be executive privilege. And until executive privilege is determined and cleared, I did not have the authority to be able to send that forward to the committee.

I worked with the Office of Legal Counsel for the past several weeks to get resolution on this. It's a very deliberate process.

SCHIFF: Well, Director, I'm still trying to understand the chronology.

You first went to the Office of Legal Counsel and then you went to White House counsel?

MAGUIRE: We went -- excuse me. Repeat that please, sir. SCHIFF: I'm just trying to understand the chronology.

You first went to the Office of Legal Counsel, then you went to the White House counsel?

MAGUIRE: No, no, no, sir. No, sir.

No, we -- we went to the White House first to determine -- to ask the question...

SCHIFF: OK. That's all I want to know, is chronology.

So you went to the White House first. So you went to the subject of the complaint for advice first about whether you should provide the complaint to Congress.

MAGUIRE: There were issues within this. A couple of things.

One, it did appear that it has executive privilege. If it does have executive privilege, it is the White House that determines that. I cannot determine that as the director of national intelligence.

SCHIFF: But in this case, the White House, the president is the subject of the complaint. He's the subject of the wrongdoing.

Were you aware -- when you went to the White House for advice about whether evidence of wrongdoing by the White House should be provided to the Congress, were you aware that the White House counsel has taken the unprecedented position that the privilege applies to communications involving the president when he was president, involving the president when he wasn't president, involving people who never served in the administration, involving people who never served in the administration even when they're not even talking to the president? Were you aware that that is the unprecedented position of the White House, the White House you went to for advice about whether you should turn over a complaint involving the White House?

MAGUIRE: Mr. Chairman, as I said in my opening statement, I believe that everything here in this matter is totally unprecedented. And that is why my former directors of national intelligence forwarded them to you, whether or not it met urgent concern or whether it was serious. This was different. And to me, it just seemed prudent to be able to check and ensure, as a member of the executive branch, before I sent it forward.

SCHIFF: I just have a couple more questions then I'll turn it over to the ranking member. He may consume as much time as I did.

The second place you went to was the Justice Department. And you went to that department headed by a man, Bill Barr, who was also implicated in the complaint. And you knew that when you went to the Department of Justice for an opinion, correct, that Bill Barr was mentioned in the complaint?

MAGUIRE: Mr. Chairman, I went to the Office of Legal Counsel in consultation with the ICIG -- he was a part of that -- to receive whether or not this met the criteria...

SCHIFF: Yes, but that ICIG vehemently disagreed with the opinion of the Bill Barr Justice Department, did he not?

MAGUIRE: He still considered it a matter of urgent concern. However, as you know, opinions from the Department of Justice Office of Legal Counsel are binding on all of us in the executive branch.

SCHIFF: Well, let me ask you this. Do you think it's appropriate that you go to a department run by someone who's the subject of the complaint to get advice -- or who is a subject of the complaint or implicated in the complaint for advice as to whether you should provide that to Congress? Did -- did that conflict of interest concern you?

MAGUIRE: Mr. Chairman, when I saw this report and complaint, immediately I knew that this was a serious matter. It came to me, and I just thought it would be prudent to ensure...

SCHIFF: I'm just asking if the conflict of interest concerned you.

MAGUIRE: Well, sir, I have to work with what I've got, and that is the Office of Legal Counsel within the executive branch.

SCHIFF: But what you also had was a statute that says shall. And even then, you said you had the discretion to provide it but -- but did not.

[09:55:00] MAGUIRE: Because it did not meet the matter of urgent concern, that took away the seven-day timeline.

I have endeavored to work with the Office of Legal Counsel in order to get the material to you, which we have provided to you yesterday.

Now, I have to tell you, Chairman. It is not, perhaps, at the timeline that I would have desired or you. But the Office of Legal Counsel has to make sure they make prudent decisions. And yesterday when the president released the transcripts of his call with the president of Ukraine, then they could no longer -- executive privilege no longer applied, and that is when I was free to be able to send the complaint to the committee.

SCHIFF: Director, you don't believe the whistleblower is a political hack, do you?

MAGUIRE: I don't know who the whistleblower is, Mr. Chairman, to be honest with you. I've done my utmost to ensure that I protect his anonymity.

SCHIFF: That doesn't sound like much of a defense of the whistleblower here, someone you found did everything right.

You don't believe the whistleblower's a political hack, do you, Director?

MAGUIRE: I believe that -- as I said before, Mr. Chairman, I believe the whistleblower are -- is operating in good faith and has followed the law...

SCHIFF: Well, then they couldn't be -- then they couldn't be in good faith if they were acting as a political hack, could they?

MAGUIRE: Mr. Chairman, my job is to support and lead the entire intelligence community. That individual works for me, therefore it is my job to make sure that I support and defend that person.

SCHIFF: You don't have any reason to accuse them of disloyalty to our country or suggest they're beholden to some other country, do you?

MAGUIRE: Absolute -- sir, absolutely not.

I believe that the whistleblower followed the steps every step of the way. However the statute was one, in this situation, involving the president of the United States, who is not in the intelligence community or matters underneath my supervision, did not meet the criteria for urgent concern.

SCHIFF: Well, I'm just asking about the whistleblower right now.

MAGUIRE: I think the whistleblower did the right thing. I think he followed the law every step of the way, and we just got stuck...

SCHIFF: Then -- then why -- Director, when the president called the whistleblower a political hack and suggested that he or she might be disloyal to the country, why did you remain silent?

MAGUIRE: I did not remain silent, Mr. Chairman. I issued a statement to my workforce, telling the committee my commitment to the whistleblower protection and ensuring that I would provide protection to anybody within the intelligence community who comes forward.

But the way this thing was blowing out, I didn't think it was appropriate for me to be making a press statement so that we counter each other every step of the way.

SCHIFF: I -- I think it was not only appropriate, but there's nothing that would have given more confidence to the workforce than hearing you publicly say, no one should be calling this professional, who did the right thing, a hack or a traitor or anything else. I think that would meant a great deal to the workforce.

So, Mr. Nunes, you're recognized.

NUNES: Welcome Mr. Director. It's a pleasure to have you here.

And you're going to be a part of a charade of legal word games. They're going to try to get you to say something that can be repeated by the media that is here that wants to report this story.

You -- I just want to get one thing straight, because one of the quotes they're going to use from you is you saying that this was a credible complaint. That will be used and spun as you're saying that it was true, and I want to give you an opportunity to -- you do not -- you have not investigated the veracity or the truthfulness of this complaint?

MAGUIRE: That's correct, Ranking Member.

The determination on credible was made the I.C. inspector general. He made the determination that it is credible and he also made the determination of urgent concern.

My question was not -- I did not question his judgment there. The question I had was, does, in fact, this allegation of wrongdoing meet the criteria -- the statutory criteria of urgent concern? And the other issue, as I said, complicated things, did it, in fact, the allegations within this whistleblower complaint involve executive privilege?

NUNES: Thank you for -- for clarifying that.

Have you ever -- you mentioned it a little bit in your testimony, but have you ever or are you aware of any former DNIs who have testified about whistleblower complaints in the public?

MAGUIRE: Not to my knowledge, Ranking Member. I do not know.

NUNES: Are you aware of any cases like this that were put into the spotlight? Is -- would this be the way to handle it out in the public like this?

MAGUIRE: I am not aware of any. But I want to say, once again, I believe that the situation we have and why we're here this morning is because this case is unique and unprecedented.

NUNES: So, why are cases normally not handled out in the public?

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