June 28, 2021
April 9, 2020
Editorial credit: Jim Lo Scalzo / EPA-EFE / Shutterstock
In notifying Congress, Atkinson had done precisely what the law required him to do. Yet, the President fired Atkinson because, Trump said, he “no longer” had “the fullest confidence” in Atkinson. Why not?
At a press conference thereafter, Trump explained: Atkinson had done “a terrible job, absolutely terrible. He took a fake report and he brought it to Congress with an emergency okay? Not a big Trump fan, that I can tell you.” The President’s claim that it was a “fake report” was false. As the world knows, the report was not “fake.” It was supported by compelling testimonial and documentary evidence presented to Congress.
Mr. Atkinson is a man of unquestioned integrity, competence and sound judgment. At a young age, he became a partner in a major Washington, D.C. law firm. He left eleven years later to enter public service in the wake of the 9/11 bombings. He then served with distinction in various capacities in the U.S. Department of Justice, including service in the Department’s National Security Division. In November 2017, President Trump nominated him to be Inspector General of the Intelligence Community. After Senate confirmation, Atkinson took office in May 2018.
Instead, the President fired Atkinson for doing precisely what the law required him to do. Atkinson received a complaint from a whistleblower. He investigated the complaint, concluded that the complaint was “credible” and contained a matter of “urgent concern” as defined by the governing statute. As the statute required under such circumstances, Atkinson forwarded the complaint and the results of his investigation to his superior, Joseph Maguire, the acting Director of National Intelligence. After White House intervention, Maguire declined to send the complaint and investigative results to the Senate and House Intelligence Committees. As the law also required, Atkinson then notified the Chairs of those Committees that he and Maguire were at an impasse. Maguire thereafter sent the materials.
That Atkinson was fired for doing what the law required is crystal clear. Michael Horowitz, the Inspector General for the Department of Justice and the Chair of the Council of the Inspectors General on Integrity and Efficiency, said as much. In a statement he issued on the morning after Atkinson’s firing, Horowitz said that Atkinson “is known throughout the Inspector General community for his integrity, professionalism, and commitment to the rule of law and independent oversight. That includes his actions in handling the Ukraine whistleblower complaint, which the then Acting Director of National Intelligence [Maguire] stated in congressional testimony was done ‘by the book’ and consistent with the law.”
Richard Burr, the Chair of the Senate Intelligence Committee, also holds Atkinson in high regard. After the firing, Burr said that “over the last two years [Atkinson] turned the Office of the [Intelligence Community Inspector General] around, restoring an important organization. I’ve appreciated his professionalism and responsiveness when working with the Senate Intelligence Committee on a wide range of issues.”
Under the President’s Article II duty to “take care that the laws be faithfully executed,” the President’s constitutional duty is to protect the implementation of the laws. By necessary implication, this includes the duty to protect the officials who make that implementation possible. The President, by punishing Atkinson because he properly executed the law, is violating the President’s fundamental constitutional duty to ensure that the laws are faithfully executed.
President Trump’s personal self-interest in getting rid of an official because the official’s legally mandated behavior embarrassed the President seems to be based on the imperial executive concept espoused by his Attorney General: that, under the Constitution, there are no limits on permissible motivations for a President’s decisions, regardless how nefarious, self-dealing or anti-democratic they may be. As discussed in the March 27th “Open Letter to U.S. Attorney General William Barr,” issued by Lawyers Defending American Democracy, this claim is indefensible.
Atkinson’s firing was no aberration nor was it a one-off. Instead, it manifested again a Presidential outlook that relegates the rule of law to the rule of personal whim. The President fired Lt. Colonel Alexander Vindman and his brother Yevgeny Vindman from their jobs on the National Security Council following Lt. Col. Vindman’s Congressional testimony. He fired Gordon Sondland as Ambassador to the European Union following his testimony. Joseph Maguire, acting Director of National Intelligence, lost his job after his office’s Congressional testimony about 2020 election interference by Russia that the President saw as against his political self-interest. Even Mick Mulvaney, acting Chief of Staff and no anti-Trumper, was fired after he admitted there was a quid pro quo offered by the President to the President of Ukraine. The list goes on.
The impact on the rule of law of the purges and baseless criticisms heaped on public officials who were simply doing their jobs inevitably degrades respect for the rule of law and the principle that ours is a government of laws and not of individuals. But the Presidential attacks on a critical public official because the official carried out his legal duty takes that degradation to a new and highly dangerous level. We simply will not remain the country we have always been if we permit a President to fire someone for doing exactly what the law requires. Lawyers, bar associations and others who recognize that the rule of law is the essential ingredient of the American genius must speak out loudly, forcefully and relentlessly to protect it.
PRESS RELEASE: "Distinguished Attorneys Slam the President’s Firing of Inspector General Atkinson; Call his Actions 'Indefensible'"
THIS A STATEMENT FROM THE BOARD OF LDAD:
Fernande (Nan) R.V. Duffly
Eugene R. Fidell
Ruth Ellen Fitch
Carmen F. Francella
Fred M. Lowenfels
Stanley J. Marcuss
James F. McHugh
John T. Montgomery
Gershon M. (Gary) Ratner