How does Executive Privilege override the clear provision of statute at 5 U.S.C. App. §8H (c) on Whistle Blower Complaints?


With respect to the testimony of Acting Director of National Intelligence McGuire before the Permanent Select Committee on Intelligence, U.S. House of Representatives on September 26, 2019, that as a member of the Executive Branch, Executive Privilege prevented him from sending the now infamous "Whistle-blower complaint to the Congressional Intelligence Committee's. By what legal theory could Executive Privilege override the plain wording of statute that:

(c) Upon receipt of a transmittal from the Inspector General under subsection (b), the head of the establishment shall, within 7 calendar days of such receipt, forward such transmittal to the intelligence committees, together with any comments the head of the establishment considers appropriate.

While derived or inferred from the separation of Powers and Article II, the Constitution makes no explicit provision for Executive Privilege nor, to my knowledge is it in statute. This question is limited to the Directors responsibility to Executive Privilege and not other legal reasons opined by the Office of Legal Counsel in DoJ to quash the complaint.

Richard Struss

Posted 2019-09-27T02:28:25.167

Reputation: 356

Good question but FWIW this will likely end up opinion based until the matter is settled in Congress and/or in courts. That being said, if you care about McGuire's explanation he gave his legal rational in his opening statement when testifying before Congress. – Denis de Bernardy – 2019-09-27T02:52:08.543

Denis, yes thank you. While he did give some legal rationale as to meeting the definition of urgent concern viz the statute, I believe he merely stated that since the subject was a conversation by the President with a foreign leader it was subject to Executive Privilege which barred him from providing the material to Congress in compliance with the Act. Prior cases on Executive Privilege, to my knowledge, have all been based on subpoena's by Congress or the Courts. In this case the order is by Statute.... I'm wondering what, if any, difference that makes. – Richard Struss – 2019-09-27T03:58:05.007


There was a little bit more than that. Either way though I wouldn't expect a definite answer to your question any time soon. I see you also asked this in the Law SE.

– Denis de Bernardy – 2019-09-27T04:09:34.630

This question seems to assume that explicit statutory provisions overrule implicit rules that come from the structure of the Constitution, but it’s actually the reverse — if a rule is derived from the Constitution (including rules that come from the structure of the document and aren’t explicitly mentioned), it’s supreme over all statutes. – cpast – 2019-09-27T12:35:36.997

CP, Thanx, answers exactly what the question was. – Richard Struss – 2019-10-01T00:56:44.407

No answers