In my view, Chairman Schiff’s claim, based on IGIC Atkinson’s interpretation of the statute, is wrong. Section 3033 does not apply to a president’s negotiations with or commitments to foreign powers, or to a president’s sharing of classified information with foreign powers. To repeat, the statute applies to intelligence activities by government officials acting under the authority of the DNI. If I am right, the Trump administration should not be accused of law-breaking for declining to follow Section 3033, even if the whistleblower had an “urgent concern” in the ordinary understanding of that term.
In our system, the conduct of foreign policy is a nigh plenary authority of the chief executive. The only exceptions are explicitly stated in the Constitution (Congress regulates foreign commerce, the Senate must approve treaties, etc.). Congress may not enact statutes that limit the president’s constitutional power to conduct foreign policy; the Constitution may not be amended by statute.
Consistent with this principle, the Justice Department has long adhered to the so-called “clear statement” rule: If the express terms of a statute do not apply its provisions to the president, then the statute is deemed not to apply to the president if its application would conflict with the president’s constitutional powers. Section 3033 does not refer to the president. By its terms, it applies to intelligence-community officials. And, in any event, it may not properly be applied to the president if doing so would hinder the president’s capacious authority to conduct foreign policy.