Why whistleblower standoff represents a ‘unique juncture’ for U.S. government

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• Judy Woodruff:

  And now to discuss the legal implications of the administration's reported efforts to bury these concerns, I'm joined by Joel Brenner. He was the National Security Agency's inspector general under the George W. Bush administration, and conducted oversight of the NSA's use of warrantless wiretaps, which began in 2002.

  Joel Brenner, thank you for joining us.

  So just, at a very basic level, given your experience in the intelligence community, who would be able to listen in or have access to listening to a president's — a phone call between the president of the United States and the leader of another country, like the president of Ukraine?

• Joel Brenner:

  Well, you would expect in the room with the president would be a significant number of staff members.

  They would be from the National Security Council. There might have been somebody from the State Department there. There would have been a notetaker. There probably would have been a stenographer taking a verbatim transcript.

  And then there would have been a memorandum of that conversation, which would have had a somewhat wider, but not very wide distribution. And, of course, there may have been security services listening to that call as well.

  That would have been the universe of people that you would start with. And, of course, there might have been people that any one of those people might also have spoken with.

  But when you're doing an investigation to find out who might have had access to information, you bound it to begin with by asking yourself, who could have had it? And that's the universe that I see here, Judy.

• Judy Woodruff:

  And so, because we're trying to — we would love to know who this person is, although they are entitled to anonymity, because whistle-blowers are respected under the law.

  But in terms of how this is being handled right now, because we're not going to know — or we don't know, at this point, who the whistle-blower is. What do you make of the fact that the inspector general, the department, that the rest of the government got involved, and now the president seems to be very much on the spot?

• Joel Brenner:

  Well, look, I think, on the face of it, you have a statute that's just not being followed, that the administration is thumbing its nose at it.

  There could have been an assertion of executive privilege involved in the — but I think that privilege would fall away in the event that there were — it was used to protect criminal behavior. I'm not saying that happened, but just that's the nature of way privileges work.

  And, of course, the administration is also saying that the statute doesn't apply. And I think they have just got that all wrong. I don't think there's much to be said on their behalf there.

  So, we're at an unusual, I think, maybe unique juncture here, Judy, with the two main branches of government at absolute loggerheads. And the Congress has its impeachment tools. Not only could they impeach the president if they wanted to, but they could also impeach the acting director of national intelligence.

  I'm not sure there's an appetite for that. But that's the tool that the Congress gives to the Congress, along with the power of over appropriations.

• Judy Woodruff:

  And the fact that, as I was just discussing with Nina Jankowicz, that there is a question about whether aid, U.S. aid to Ukraine may have been involved in some sort of quid pro quo, how does that complicate this?

• Joel Brenner:

  Well, look, I ask myself, if I were still an antitrust prosecutor, which I was early in my career, and I saw price movements in the market that were all over the place, and, all of a sudden, I saw that — the two main companies moving their prices together, and I had access to prove that there had been conversations like this, not about military aid, but about price movements, I would have opened a grand jury.

  Anyone would have opened a grand jury, and if — in order to investigate whether there was a deal over prices. In this case, one wants to know, was there a deal over the military aid?

  And the deals don't have to be explicit. In a price-fixing case, for example, or in any criminal case, one gets a jury instruction that an agreement can be tacit.

  So, I think the question here, I just look at this as a — as if this was an ordinary matter. Forget who's involved. There are just two companies or something. You would investigate it.

  And, of course, the Congress wants to investigate it. And I don't see how they could take a different view.

• Judy Woodruff:

  And that, of course, is what everybody's watching to see, whether that happens or not.

  Joel Brenner, thank you very much.

• Joel Brenner:

  You're welcome.