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Analysis Of Maguire's Testimony About Whistleblower Complaint

NOEL KING, HOST:

OK. We're going to turn now to someone who has deep experience in these kinds of matters. Robert Litt was former general counsel of the Office of the Director of National Intelligence under President Obama. Good morning, sir.

ROBERT LITT: Good morning.

KING: OK. So I imagine that you have been watching this just like the rest of us. I want to start by playing a clip from the House intelligence committee hearing. This is - this is House intelligence committee Chairman Adam Schiff. And he's talking to the director of national intelligence, Joseph Maguire. Let's listen to that back-and-forth.

(SOUNDBITE OF ARCHIVED RECORDING)

ADAM 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 that 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 the whistleblower will be able to testify fully and freely and enjoy the protections of the law?

JOSEPH MAGUIRE: Yes, Congressman.

KING: OK. So you here Representative Schiff there sounding worried that the White House could be getting in the way of the whistleblower process. How does Maguire, who was appointed by President Trump, assure Congress that he can keep both the whistleblower and this process protected from interference?

LITT: Well, that's a good question. I think Maguire can only speak for his ability to control his institution and to ensure that nobody in his institution retaliates against the whistleblower. I think it would be nice if the Republicans on the committee stood up and publicly stated their willingness to ensure that the whistleblower is protected as well because I think that if the whistleblower is willing to testify, he or she is going to need that assurance from everybody on the committee.

Obviously the whistleblower has, to date, been unwilling even to have his or her identity revealed. And testifying obviously would reveal not only identity, but a lot of - about the person. And I think the whistleblower is rightly concerned given that there have already been partisan attacks.

KING: Is there any reason that the whistleblower can't come before a closed session?

LITT: At this point, I don't think so. The complaint has been declassified. Executive privilege has been waived. I think there's no reason at all why the whistleblower shouldn't be able to testify.

KING: OK. Do you think the whistleblower will testify?

LITT: I don't know the answer to that.

KING: Yeah. Yeah.

LITT: He has very good lawyers who I'm sure - or she - will protect his or her interests.

KING: You've had time to read through the whistleblower complaint that was released today. Everyone was sort of waiting on that with a lot of anticipation. What stood out to you here that Maguire has had to answer for today?

LITT: So are you asking me what stood out about the process...

KING: Yeah...

LITT: ...Or about the complaint itself?

KING: Well, let me ask you both. What stood out in the complaint? And then what stood out in the process?

LITT: So in the complaint, I think two things struck me. The first was, frankly, how accurately the whistleblower reported what we read in the transcript. I think there's a very close parallel between what the whistleblower heard secondhand and what the conversation actually was. The other thing that I think was new was the allegation by the whistleblower that shortly after this conversation, people at the White House seemed to have realized that it was problematic and tried to lock it down so that it wouldn't be circulated through normal channels.

In terms of the process, I have said publicly, I've written on the Lawfare blog that I think that the DNI handled this exactly appropriately. And I think that his testimony today reinforced that. He was put in a very difficult position because he had allegations that clearly implicated executive privilege. That's not within his authority. It's got to be the White House. And so he notified the White House. He really had no choice but to do that in the appropriate exercise of his authority.

I frankly am a little mystified that the Democrats on the committee are making such a big deal out of this at this point because they've got the complaint. And they've got the - they've got the transcript at this point. And it - the most that they can complain about is that it took a little longer to get than they would have wanted.

KING: May I ask why you think they're making a big deal out of it?

LITT: Well, I think it may be that they didn't know until this morning that the complaint was going to be released. And it's sometimes difficult to turn the destroyer around on a dime. I don't purport to understand congressional motivations.

KING: Fair enough. OK. All right. So you said you believe that Maguire did the appropriate thing when he went to the White House first then the Department of Justice. Congress obviously, though, seems to think that this was not the right process or not the right chronology. I just wonder, is Mr. Maguire's job in jeopardy at all here? Is he in any kind of legal or other trouble himself?

LITT: Well, he's not in any legal trouble.

KING: OK.

LITT: You know, this is one of those areas where there is a longstanding dispute between Congress and the executive branch over their respective authorities. And you have fights like these all the time, where Congress says we're entitled to something. The executive branch says, no, you're not. And eventually, as happened in this case, there's some kind of a resolution reached.

You know, Maguire is serving as acting DNI at the pleasure of the president. I think it's been interesting. It appears to me that he has been very, very careful never to specifically contradict anything the president has said in response to questions. For example, he was asked, do you think the whistleblower is a political hack? And he kind of dodged the question. He says, it's my responsibility to protect everybody in the intelligence community.

I think he is aware that - as many people have said - he has an audience of one. And he's not going to specifically contradict the president while doing his best to defend his people.

KING: Let me ask you a last question. You talked to my colleague, Steve Inskeep, earlier this morning. And Steve asked you, what do you want to hear? And you said what you really wanted to hear was that the whistleblower would be protected, that there would be guarantees of that and those guarantees would be believable. In this hearing - what are we, about a little over an hour in now? - are you hearing that?

LITT: Well, I've certainly heard it from Admiral Maguire. And the - certainly the Democrats on the committee have emphasized this. As I said earlier, I would like to see - and I obviously haven't been listening for the time we've been talking.

But I would like to see some of the Republicans stand up and say, yes, we believe that this whistleblower - whether ultimately we agree or disagree on the substance, that this whistleblower needs to be protected and honored for following the rules that we, Congress, have established.

KING: Robert Litt is former general counsel of the Office of the Director of National Intelligence. Mr. Litt, thanks so much for sharing your expertise. We really appreciate it.

LITT: Thanks for having me.

(SOUNDBITE OF TAKUYA KURODA'S "RISING SON") Transcript provided by NPR, Copyright NPR.

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