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Acting Intel Chief Testifies About Whistleblower Complaint. Aired 10-10:30a ET

Aired September 26, 2019 - 10:00   ET




REP. DEVIN NUNES (R-CA): So why are cases normally not handled out in the public?

MAGUIRE: All the other cases that came before, either this committee or the Senate committee, whether or not they met the criteria of urgent concern were forwarded because they involved members of the Intelligence Community who were, in fact, in organizations underneath the DNI's authority and responsibility.

This one just didn't come that way because it involved a member -- an individual who is not a member of the Intelligence Community or an organization underneath the authority of the DNI. So this one is different from all others in the past that I am aware of.

NUNES: So I want to get into how this all got out in the public over the last -- this has basically been an orchestrated effort over two weeks. If you -- we were first told about it a week and a half ago. And we were told very specifically that the whistleblower did not want to get any of this information out, they didn't want it to leak out.

So there were only a few potential groups of people that would have known about this complaint, you and your people within your office --

MAGUIRE: Yes, sir.

NUNES: -- the people within the Inspector General's Office and the whistleblower and whoever that whistleblower gave this information to.

So what I'm trying to ascertain is how would it run in all the mainstream media outlets? How did they get -- even though they got a lot of it wrong, but they had the basics of it that it involved the president of the United States talking to a foreign leader.

So did anybody, you or anybody in your office leak this to The Washington Post or NBC News?

MAGUIRE: Ranking member, any of the Intelligence Community, we know how to keep a secret. As far as how that got into the press, I really do not know, sir. I just know it's all over the place, and as you said, it's been reported by different media for the past several weeks. Where they get their information from, I don't know.

NUNES: So that is --

MAGUIRE: And it was not from the Intelligence Community, from me or from my office.

NUNES: Thank you, Director.

So this is not the first time this has happened to this president, that happened with a call between the Mexican president, the Australian prime minister, so it's happened twice before, the pieces of transcripts leaked out. And, of course, this time it was leaked out again and the president, thankfully, he was able to put this out because of the -- because of the actions of this -- of the situation, as you said, that is unprecedented.

Is it normal for the president of the United States to have their conversations leak out? This is the third time.

MAGUIRE: I would have to leave that to the White House to respond to that, ranking member. But to me, the president of the United States' conversation with any other head of state, I would consider a privileged conversation.

NUNES: But, clearly, I mean, those conversations are being captured by the intelligence agencies. So --

MAGUIRE: Not necessarily, sir. I mean, if the president --

NUNES: Well, I should say this. They're captured and then disseminated.

MAGUIRE: When the --

NUNES: Captured and disseminated to the intelligence agencies.

MAGUIRE: I have to be careful in this open hearing about, you know, how I respond to that. The Intelligence Community and the National Security Agency, obviously, you know, they collect things that -- to protect --

NUNES: I just want to make sure because I just -- I mean, I would just going to -- foreign leaders -- we're not just going to have either the president of the United States not talk to foreign leaders or we should just -- or publish -- just publish all the transcripts, because that's what's happening here.

MAGUIRE: Ranking member --

NUNES: And somebody is leaking this and it's likely coming from the agencies that you oversee.

MAGUIRE: Ranking member, no, that -- sir --

NUNES: I'm not saying that you don't know, but we had the transcript of the Mexican president, the Australian prime minister and now contents of a call with the Ukrainian president leak out.

MAGUIRE: Ranking member, the allegation in the whistleblower complaint was that there were about 12 people who listened in on the conversation, members of the National Security Council and others. And then others were briefed from State Department as well of the transcripts because they have an area responsible and a region responsible, then they would be informed on the interaction.

So there were a number on of people from the White House briefed on the call. This would not be something that --

NUNES: Well, I'm quite sure of this. The White House probably didn't leak this out.


MAGUIRE: I wouldn't say the White House, but there are individuals within the White House that may or may not. I don't know. But it would not be from an intelligence intercept. I will say that.

NUNES: Right. I'm not -- I'm just saying the dissemination of these calls is supposed to be sacred, right? I mean, it's -- and it is important for the State Department and the appropriate agencies to get -- I'm not saying it's all the intelligence agency, but when a president talk toes a foreign leader, it's confidential. Those contents are confidential. There could be some facts of that conversation that you do want to get to the appropriate agency, not just the -- not just the I.G. I want to be clear about that. But this is now the third time. I'm not aware of this ever happening before of contents of calls like this getting out.

MAGUIRE: I really don't know, ranking member. I'm not aware. I don't have the numbers to -- it just seems to me though that it is unprecedented. And I would also say, I think the decision by the president yesterday to release the transcripts of his conversation with the president of Ukraine is probably unprecedented as well.

NUNES: Well, we appreciate you being here and have fun -- be careful what you say because they're going to use these words against you.

MAGUIRE: Well, I'll tell you what, ranking member, either way, I'm honored to be here and I'm honored to bed leading the intelligence --

NUNES: And I appreciate your service to this country for a long time and I'm sure we'll be talking again soon, hopefully, not in the public, hopefully, behind closed doors like this is supposed to be done.

MAGUIRE: thank you very much, ranking member.

NUNES: I yield back.


REP. JIM HIMES (D-CT): Thank you, Mr. Chairman. Director Maguire, thank you for being here and thank you for your profound service and the service of your family to this country.

Director, what I find bewildering about this whole conversation is that we are not sitting here today and the American public is not aware of the allegations of the president asking for a favor of investigation into his political opponent.

We're not aware of the murky decision to withhold aid. We're not aware of Mr. Giuliani's apparent establishment of a personal state department. We Are not aware of a possible retaliation against a U.S. ambassador.

None of this happens but for the decision of your inspector general, Michael Atkinson, a man who was appointed by President Trump and confirmed by a Republican Senate to come to this committee seven days after the complaint was required by law to be transmitted to us.

It was his decision, personal decision, not the kaleidoscope of fantabulistic conspiracy theories the ranking member thinks is happening here, but it was the decision of Michael Atkinson, an appointee of this president, to come to this committee following not advice from you or any law, but following his own conscience. Without his decision to do this, none of this is happening, correct?

MAGUIRE: I applaud Michael's -- the way he has done this. He has acted in good faith. He has followed the law in every step of the way. The question is, Congressman, does it -- did it or did it not meet the legal definition --

HIMES: No, sir, I asked a very different question, which was without his decision -- it's a simple question. Without his decision, none of this is happening. Is that correct?

MAGUIRE: Well, we've got to back up to the whistleblower as well. So --

HIMES: Okay. And I should have noted that the whistleblower also deserves the same accolade that Mr. Atkinson does.

Director, were you ever advised by the White House not to provide this complaint to Congress for any reason?

MAGUIRE: No, Congressman.

HIMES: Okay. And as I understand it, the opinion was that you were not obligated to convey -- despite the very clear wording of the law, to convey the complaint to Congress.

So the decision was taken to defy a subpoena of this Congress, the subpoena of September 17th to turn over the complaint. Who made the decision to defy that subpoena of September 17th?

MAGUIRE: Congressman, urgent concern --

HIMES: Sir, I'm asking you a very simple question. Who made the decision to defy the congressional subpoena? Somebody said we will not abide by this subpoena and I'd like to know who that somebody was. MAGUIRE: Congressman, nobody did. I endeavored, once we no longer had urgent concern with the seven-day timeline to work, to get the information to the committee. What I needed to do was to get work through the executive privilege hurdles with the Office of Legal Counsel at the White House.

Although this was the most important issue to me, the White House has got quite a few other issues that they were dealt with. I would have liked to have had -- as I said to the Chairman -- that perhaps this moved a little faster than it did, but this is a very deliberate process and finally it came to a head yesterday.


So with -- when I received the information on the 26th of August, we had seven days based on the Whistleblower Protection Act. All we did was lose those seven days. It may have taken longer than we would have liked or you would have liked, but you have the Information.

HIMES: So, sir, so I'm focused on the subpoena.

MAGUIRE: Yes, sir.

HIMES: The subpoena is on your desk. The subpoena of the Congress of the United States is pretty clear in what it asks for. You're saying that a decision was never taken not to comply with that subpoena and yet somehow it wasn't complied with. Again, I'm looking for the decision-making process to ignore a legal congressional subpoena.

MAGUIRE: Congressman, I did not ignore. I dealt with the chairman of this committee and asked to have one more week to be able to do what I needed to do to get this information released. He was gracious enough and this committee was very supportive. It wasn't something that it was ready to go, but I was committed, fully committed to this committee and to the chairman to get that information, and I finally was able to provide that yesterday.

HIMES: Okay. Thank you, Director.

Director, did you or your office ever speak to the president of the United States about this complaint?

MAGUIRE: Congressman, I am the president's intelligence officer. I speak with him several times throughout the week.

HIMES: Sir, let me repeat my question. Did you ever speak to the president about this complaint?

MAGUIRE: My conversations with the president, because I am the Director of National Intelligence, are privileged and it would be inappropriate for me because it would destroy my relationship with the president in intelligence matters to divulge any of my conversations with the president of the United States.

HIMES: But just so we can be clear for the record, you are not denying that you spoke to the president about this complaint? MAGUIRE: What I am saying, Congressman, is that I will not divulge privileged conversations that I have as the Director of National Intelligence with the president.

HIMES: Has the White House instructed you to assert that privilege?

MAGUIRE: No, sir. I'm just a member of the executive committee, I'm in an executive branch, as a member of the National Security Council and also the Homeland committee. And I just have to maintain the discretion and protect the conversation with the president of the United States.

HIMES: Thank you, Director. I appreciate that answer. Apparently, the clock is broken, but I will yield back the balance of my time.

MAGUIRE: Thank you, Congressman.

SCHIFF: Mr. Conway.

REP. MIKE CONAWAY (R-TX): Thank you, Mr. Chairman. Admiral, thanks for being here. You and I are at a competitive disadvantage because neither one of us are lawyers. And that may be a badge of honor for some of us.

You have lawyers on your staff, sir?

MAGUIRE: I do, Congressman.

CONAWAY: And your lawyers have looked at this urgent concern definition thoroughly and have given you advice?

MAGUIRE: Yes, Congressman.

CONAWAY: If the Black Letter Law was so clear in black letter, how is it that we've got different attorneys giving you and I different opinions, that's a rhetorical question, with respect to this issue.

Just to clarify, Mike Atkinson was in our group in front of us last week, did a very good job of telling us what he did and what he didn't do. We now know for sure what it is that he was able to do. As part of his investigation, he did not request records of the call from the president and the reason he did is he cited the difficulty of working through all of that when it probably meant that he couldn't comply with the 14-day timeframe. So even he did not try to overrun the White House's executive privilege over the conversation that the president had with President Zelensky.

He also said in his letter, I also determined -- this is according to Michael -- I also determined that there were reasonable grounds to believe that information relating to the urgent concern appeared credible. Now, that's a different statement than a flat out, it's credible. So it's, again, a rhetorical statement.

Is there anything of statute from your lawyers in advising you that says that the determination of the urgent concern lies solely with the ICIG? MAGUIRE: No, sir, I was never advised by my legal counsel to that effect.

CONAWAY: All right. Has the -- to your knowledge, has the Justice Department ever weighed in to say that the fact that DNI can't make a separate decision with respect to that seven-day process that the matter is not of urgent concern as your team decided?

MAGUIRE: The matter of urgent concern is a legally defining term. It's pretty much either yes or no.

CONAWAY: Well, apparently, that's not the case, Admiral, because I.G. said it was and you're saying it's not under that legal definition because it involved the president. The last time I checked, you're pretty familiar with chains of command, I know. He's not in your chain of command. You're in his chain of command. So for very definite reasons appear to be credible, it doesn't meet the statutorily urge concern definition with respect to the whistleblower protections of the I.G., and your team made that call.


The inspector general made a different call.

MAGUIRE: No, sir. My team --


MAGUIRE: It was the Department of Justice Office of Legal Counsel that made the determination that it was not urgent concern. All we wanted to do was just check and see. And to me, it just seemed prudent with the matter at hand right now to be able to just make sure that, in fact, it did. And when it didn't, I want to say, once again, I endeavored to get that information to this committee.

CONAWAY: Okay. So just to clarify the role that inspector general had with respect to the Department of Justice, I heard you say that he was involved in the conversations, allowed to make his case, but also said you gave him the letter, gave the Justice Department the letter. What was his exact involvement in making his case to the Justice Department to his decision? Was he actually there present physically or his lawyers there?

MAGUIRE: To the best of my knowledge, the ICIG's transmittal letter, as well as the complaint from the whistleblower were forwarded to the Office of Legal Counsel for their determination. I believe that that is what they based their opinion on.

CONAWAY: Okay. So they will think he have --

MAGUIRE: If I'm incorrect, I will come back to the committee and correct that, sir.

CONAWAY: Okay, I appreciate that.

You're in a tough spot. Appreciate your long-storied history. I apologize if your integrity was insulted. That happens in this arena a lot, sometimes justified and most of the time, not. And your integrity was not justified with answers (ph). The fact that we have differences of opinion, when we start losing those differences of opinion, we start to attack each other, call each other names and those kinds of things.

And so my experience is when you have got a legal matter, I have got lawyers I pay, you've got lawyers you pay. I typically stick with the lawyers that I'm paying.

You had good legal advice on this issue and a really tough spot wanting to make sure that this whistleblower was protected, but at the same time that if, in fact, there was something array (ph) here that it would get the full airing that it's currently getting.

So thank you for your service and I yield back.

MAGUIRE: Thank you very much, Congressman.

SCHIFF: Ms. Sewell.

REP. TERRI SEWELL (D-AL): Thank you, Mr. Chairman. And Director Maguire, thank you so much for being here.

I want to turn to what I fear may be one of the most damaging long- term effects of this whistleblower episode, and that is the chilling effect that it will have on others in government who may witness misconduct, but now may be afraid to come forward to report it.

Sir, I'm worried that government employees and contractors may see how important this situation has played out and decide it's not worth putting themselves on the line. The fact that a whistleblower followed all of the proper procedures to report misconduct and then the Department of Justice and the White House seems to have weighed in to keep the complaint hidden is problematic, sir.

I want to know whether or not you see how problematic this will be in having a chilling effect on members of the I.C. that you are sworn to represent and ostensibly protect.

MAGUIRE: Congresswoman, I think that's a fair assessment. I don't disagree with what you've said. I have endeavored to transmit to the Intelligence Community my support, the whistleblowers, and I'm quite sure that for at least two hours this morning, there are not many people in the Intelligence Community who were doing anything that's productive besides watching this.

SEWELL: Right. So my concern, I think, is a valid one that, in fact, what has happened with this whistleblower episode will have a chilling effect.

I just also want to ask you, have you given direction to this whistleblower that he can, in fact, or he or she, can, in fact, come before Congress?

Director, when the president called the whistleblower a political hack and suggested that he or she was potentially disloyal to the country, you remained silent. I'm not sure why. But I also think that that adds to the chilling effect.

The statute seems pretty clear that you shall -- everybody has a role to play. The process seems pretty clear. And part of it also includes you directing the whistleblower of his or her protected rights. Can you confirm that you've directed that whistleblower that he or she can come before Congress?

MAGUIRE: Well, Congresswoman, there're several questions there. One, I do not know the identity of the whistleblower. Two, now that the complaint has come forward, we are working with his counsel in order to be able to provide them with security clearance.


SEWELL: So, sir, I think it's pretty -- my question is pretty simple. Can you assure this committee and the American public that the whistleblower is authorized to speak to the committee with the full protections of the Whistleblower Act? Can you confirm that? That's a yes-or-no question.

MAGUIRE: Right now, I'm working through that with the chair. And to the best of my ability, I believe the chair was asking to have the whistleblower come forward and I'm working with counsel, with the committee to support that.

SEWELL: Can you assure the American public that the end result will be that the whistleblower will be able to come before this committee and Congress and have the full protections of the whistle -- after all, what is the whistleblower statute for if not to provide those full protections against retaliation, against litigation?

MAGUIRE: Congresswoman, I am doing everything to endeavor to support that.

SCHIFF: Will the gentlewoman yield?


SCHIFF: Director, do I have your assurance that once you work out the security clearances for the whistleblower's counsel, that that whistleblower will be able to relate the full facts within his knowledge, the concern, wrongdoing by the president or anyone else that he or she will not be inhibited in what they can tell our committee, that there will not be some minder from the White House or elsewhere sitting next to them telling them what they can answer or not answer. Do I have your assurance that whistleblower will be able to is testify fully and freely and enjoy the protections of the law?

MAGUIRE: Yes, Congressman.

SCHIFF: Thank you. I yield back to the gentlewoman.

SEWELL: So, Mr. Director, I also want to understand what you're going to do to try to ensure the trust of the employees and contractors that you represent to assure the American people that the whistleblower statute is, in fact, being properly adhered to and that no further efforts would be to obstruct an opportunity for a whistleblower who has watched misconduct to actually get justice.

MAGUIRE: Congresswoman, supporting and leading the men and women of the Intelligence Community is my highest priority. I don't consider that they work for me as a Director of National Intelligence. I believe that I serve --

SEWELL: Well, sir, I just want to say and go on record as being very clear that this will have a chilling effect. And that is exactly not what the statute was intended for. It was intended for transparency. It was intended and also to give the whistleblower certain protections. And I think the American people deserve that. Thank you.

MAGUIRE: Thank you, Congresswoman.

SCHIFF: Mr. Turner.

REP. MIKE TURNER (R-OH): Director, thank you for being here.

MAGUIRE: Good morning, Congressman.

TURNER: Thank you for your service and the clarity at which you have described the deliberations that you went through in applying the laws with respect to this complaint. It is incredibly admirable in the manner in which you've approached this.

Now, I've read the complaint and I've read the transcript of the conversation with the president and the president of the Ukraine. Concerning that conversation, I want to say to the president, this is not okay. That conversation is not okay. And I think it's disappointing to the American public when they read the transcript.

I can say what else it is not. It is not what's in the complaint. We now have the complaint and the transcript and people can read that the allegations in the complaint are not the allegations of the subject matter of this conversation.

What else it's not, it's not the conversation that was in the chairman's opening statement. While the chairman was speaking, I actually had someone text me, is he just making this up? And, yes, he was because sometimes fiction is better than the actual words of the text.

Well, luckily, the American public is smart and they have the transcript. They've read the conversation. They know when someone is just making it up.

Now, we've seen this movie before. We've been here all year on litigating impeachment long before the July 25th conversation happened between the president and the president of Ukraine. And we've heard the clicks of the cameras in this Intelligence Committee's room where we've not been focusing on the issues of the national security threats but instead of the calls for impeachment, which is really an assault on the electorate, not just as the president.

Now, the complaint we now have, Mr. Director, is based on hearsay. The person who wrote it says I talked to people and they told me these things. The American public has the transcript and the complaint so they have the ability to compare them.

What's clear about the complaint is it's based on political issues, Mr. Director. He's alleging or she is alleging that the actions of the president were political in nature.

Now, that's my concern about how this is applied to the whistleblower statute.


The whistleblower statute is intended to better provide those in the Intelligence Community an opportunity to come to Congress when they're concerned about abuses of powers and laws. But it's about the Intelligence Community. It's about abuse of surveillance, about the abuse of the spy mechanisms that we have. This is about actually the product of surveillance. Someone had access to surveillance that related the president's conversations that has brought this forward to us.

I'd like for you to turn for a moment and tell us your thoughts of the whistleblower process and the concern as to why it has to be there so that the Intelligence Community can be held accountable and we can have oversight, because it certainly wasn't there for oversight over the president. It was there for oversight for the Intelligence Community. So if you could describe your thoughts on that?

And then I was very interested in your discussion on the issue of executive privilege, because there's been much made of the fact that the law says on the whistleblower statute that you shall. Clearly, you have a conflict of laws when you have both the executive privilege issue and the issue of the word shall.

So, first, could you tell us the importance of the whistleblower statute with respect to accountability of the Intelligence Community and our role of oversight there and then your process, your effects of being stuck in the middle where you have these conflicts of laws, Mr. Director?

MAGUIRE: Congressman, the Intelligence Community Whistleblower Protection Act is to apply to the Intelligence Community. And then that it pertains to financial, administrative or operational activities within the Intelligence Community under the oversight and responsibility of the Director of National Intelligence. It does not allow a member of the Intelligence Community to report any wrongdoing that comes from anywhere in the federal government. And so with that, I do believe that that is about the intelligence Whistleblower Protection Act was the best vehicle that the whistleblower had to use.

And it came to me in discussion with the ICIG, who is a colleague, and the determination was made by the -- well, that he viewed that it was, in fact, credible and that it was a matter of urgent concern. And I just thought it would be prudent to have another opinion.

I have worked with lawyers my whole career, whether it was the rule of armed conflict, admiralty claims or rules of engagement, or just the uniform code of military justice. And I have found that different lawyers have different opinions on the same subject.

We have nine justices in the Supreme Court. More often than not, the opinions are 5-4. That doesn't mean that five are right and four are wrong. They're differences of opinion.

But when this matter came to me, I have a lot of life experience. I realized the importance of the matter that is before us this morning. And I thought that it would be prudent for me to ensure that, in fact, it met that statute before I sent it forward in compliance with the Whistleblower Protection Act. And I hope that responds to your question.

TURNER: I yield back.

SCHIFF: As an aside, I want to mention that my colleague is right on both counts. It's not okay, but also by summary of the president's call was meant to be at least part in parity. The fact that that is not clear is a separate problem in and of itself. Of course, the president never said if you don't understand me, I'm going to say it seven more times.

My point is that's the message that the Ukraine president was receiving in not so many words.

Mr. Carson.

REP. ANDRE CARSON (D-IN): Thank you, Chairman Schiff. Thank you, Director Maguire, for your service.

Director Maguire, this appears to be the first Intelligence Community whistleblower complaint that has ever, ever been withheld from Congress. Is that right, sir?

MAGUIRE: Congressman Carson, I believe that it might be. And once again, I said in my statement, it is, in fact, as far as I'm concerned, unprecedented.

CARSON: It is unprecedented, sir. Do you know why it's unprecedented? I think it's because the law that Congress, that this very committee, drafted really couldn't be clearer. It states upon receiving such an urgent complain from the inspector general, you, the Director of National Intelligence, quote, shall, end quote -