Tulsi Gabbard’s conflict of interest — and hypocrisy

Tulsi Gabbard used to champion whistleblowers. As a member of Congress, she believed leaks were a necessary tool in revealing illegal actions taken by the government, and took principled, controversial stands opposing the prosecution of Julian Assange and supporting the pardon of my client Edward Snowden. But Gabbard’s principles went out the door when she joined Donald Trump’s administration as director of national intelligence. She helped lead an anti-leak hysteria that is taking over the federal government. And now, someone is blowing the whistle on her.

Because of Gabbard’s past support of whistleblowers, increased public profile as DNI and ongoing rumors concerning the state of her relationship with Trump, which has appeared to be in constant flux, this case has attracted substantial media attention since it was first revealed by the Wall Street Journal on Feb. 2. The story has many layers, and the media has missed several key points involving Gabbard’s conflict of interest and how the whistleblower system has been an abject failure.

“Exquisitely” classified

As an attorney who represented Thomas Drake, one of the earliest intelligence community whistleblowers to have used the Intelligence Community Whistleblower Protection Act, I know this territory intimately.  

According to the Journal, an intelligence community whistleblower filed a highly-classified complaint with the Intelligence Community Inspector General (ICIG), an independent watchdog office, in May 2025. Among the allegations was a claim that Gabbard’s office blocked the proper distribution of the complaint for eight months — including to Congress — for political reasons. Another alleged that lawyers, presumably from the DNI’s Office of General Counsel, failed to refer a potential crime to the Justice Department for political reasons.

We don’t know the substance of the intelligence report underlying the whistleblower complaint, but the government claims it is “exquisitely” classified, which raises an immediate problem: That’s not a real classification level. The report apparently involves an intelligence service intercepting a conversation between two foreign nationals about Iran and Jared Kushner’s influence on his father-in-law, the president. At the time, the Trump administration was considering a strike on Iran, which in fact occurred at the end of June 2025.

Under law, the ICIG is required to assess whether a whistleblower complaint is credible within two weeks of receipt. If the complaint is deemed credible and raises an “urgent concern,” the inspector general then has seven days to share it with lawmakers. This is where things started to go sideways.

Sinister snafus

On June 4, 2025, acting ICIG Tamara Johnson initially determined that the complaint met the definition of an “urgent concern” under applicable law, but she could not determine whether the allegations were credible. Specifically, she found that the allegations involving restricted distribution did not appear credible, while she was unable to reach a determination on the failure-to-refer allegations. 

A few days later, Johnson received new information that gave her clarity and led to her finding that the restricted distribution allegation did not appear credible. She was still, though, unable to assess the credibility of the failure-to-refer allegation. In an interview with MeidasTouch, the whistleblower’s lead counsel, Andrew Bakaj, also conceded that he’s “not familiar as much with that particular [failure-to-refer] allegation.” I don’t know what that means exactly, other than that perhaps both Johnson and Bakaj found the failure-to-refer allegation trickier to navigate. That could have been because it’s hard to prove a negative, or because they weren’t sure it amounted to a possible federal crime that would legally require them to refer it to the Justice Department.

Whatever the case, neither finding was shared with the whistleblower or their counsel for a staggering eight months, an omission that created a second problem. If the whistleblower had learned of the credibility and urgent concern determination in a timely manner, that would have allowed them to go to Congress last summer. Instead, the government is now scrambling, saying that its unprecedented delay proves the claim could not have been urgent.

Regardless of the government’s determination, the whistleblower is still permitted to share the complaint directly with Congress. The only hiccup is that the DNI must provide guidance on how to do so securely, which brings us to a third problem: Instead of providing guidance, Gabbard — the former champion of whistleblowers — apparently sat on the complaint for eight months and stonewalled the whistleblower and their lawyer. 

And worse, during this delay, she reportedly planted a mole in the ICIG’s office to snitch about the situation directly to her — obviously compromising the office’s independence. This fourth problem makes the first three look like sinister, rather than innocent, bureaucratic snafus.

How the whistleblower process should have worked

According to reports, the employee properly followed the Intelligence Community Whistleblower Protection Act (ICWPA) — a misnomer because what it actually provides is an investigative process, not protection. Under the ICWPA, an intelligence community  employee “who intends to report to Congress a complaint or information with respect to an urgent concern” may do so to their intelligence agency’s inspector general or the ICIG. A determination must be made within 14 days on whether the complaint appears credible and raises an “urgent concern.” Those initial steps appear to have occurred. 

Once the ICIG determines that the complaint credibly raises an urgent concern, they  then forward it to the relevant agency head — in this case, Gabbard — who has a week to transmit it to the congressional intelligence committees. 

I’m surprised that no one has pointed out that since she and her general counsel were subjects of the complaint, Gabbard and her office have a clear conflict of interest in making any determination. This made it clearly inappropriate for them to have played a substantive or even a procedural role in its handling. This is spelled out under a number of different authorities, including executive branch ethics regulations, which cover the DNI, and intelligence community constraints. 

It’s baffling, to say the least, that Gabbard did not recuse herself from this matter.

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But her inaction worsened the conflict. Instead of making a determination and then notifying the whistleblower’s counsel — or letting him know they did not have enough information to do so — Gabbard doubled down. During the eight months she held onto the complaint, she apparently stonewalled the whistleblower and refused multiple times to supply their lawyer with guidance on how they could securely share the complaint directly with the congressional intelligence committees, which was the whistleblower’s statutory right. When the delay became public, Gabbard responded by tossing up a confetti of excuses. 

Amateur Hour

When the fracas became public, Gabbard decided to litigate it on X and go personal on the whistleblower, inadvertently telegraphing her weak position. She posted a Trumpian tweet: “Senator Mark Warner and his friends in the Propaganda Media have repeatedly lied to the American people that I or the ODNI ‘hid’ a whistleblower complaint in a safe for eight months…This is a blatant lie.” 

Her spokesperson characterized the complaint as a “politically motivated individual weaponizing their position in the Intelligence Community, submitting a baseless complaint and then burying it in highly classified information to create false intrigue.” (Since that individual remains anonymous, I’m not sure how Gabbard is assessing their motivations, and whatever those motivations might be, it’s irrelevant to the merits of the complaint.)

Gabbard’s often-contradictory excuse salad for the irregularities in handling the complaint didn’t help matters. The delay, she variously said, was due to the government shutdown, the complaint was a nothingburger, it required special handling because of its highly-classified content, it was found not credible, staff overturn slowed down processing, it was administratively closed, it was just gossip — and now it is subject to “executive privilege.” 

This last excuse is especially concerning. Executive privilege is the president’s power to withhold sensitive information and private discussions from Congress and the judicial branch to guarantee frank conversations with other executive branch officials. To my knowledge, no presidential administration has ever claimed that raw foreign intelligence itself is subject to executive privilege. While it has occasionally been asserted with regard to senior White House aides’ communications, in this case it’s unclear who, exactly, is asserting executive privilege over the intelligence report, on what basis and why. 

The icing on the cake of Gabbard’s nonsense, though, was when she claimed she wasn’t even aware of her responsibility to produce security guidance to the whistleblower’s counsel. As a lieutenant colonel in the military and a former congresswoman who served on the Armed Services Committee, the Foreign Affairs Committee and the Armed Services Subcommittee on Intelligence & Special Operation, coupled with her admirable support for whistleblowers in the past, her alleged ignorance of how DNI works with respect to intelligence community whistleblowers defies credulity.

Whistleblower Déjà Vu​​

After 9/11, National Security Agency whistleblower Thomas Drake began having contact with the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the ICWPA regarding a number of urgent concerns, including the NSA’s mass domestic surveillance that stripped away privacy protections for Americans. The process ultimately backfired on him. When the New York Times exposed the NSA’s warrantless wiretapping program, the government needed a fall guy. The agency referred Drake for criminal prosecution in what was the signature Espionage Act case of this century. The charges ultimately collapsed, but not before putting Drake through a harrowing ordeal detailed by The New Yorker, “60 Minutes” and the documentary “Silenced.”

In 2019, another inspector general whistleblower used the ICWPA to complain that Donald Trump engaged in improper dealings with Volodymyr Zelenskyy, alleging that the president pressured his Ukrainian counterpart to investigate a political opponent, Joe Biden, and his son Hunter. In that case, which eventually led to Trump’s first impeachment, the inspector general deemed the report credible and an urgent concern, and forwarded it to Joseph Maguire, Trump’s acting DNI, who stopped the process cold. Maguire later said in a congressional hearing that he initially did not transmit the complaint to Congress because of executive privilege concerns.

Here we are again, having washed, rinsed and repeated the process with the same shampoo in a different scent. Some members from the Gang of Eight — the bipartisan leadership of congressional intelligence committees — read a version of the whistleblower complaint, but it was apparently redacted. Some Democrats complained it may not have contained enough information to have allowed lawmakers a proper evaluation of the allegations.

Back in 2013, a number of people — ironically including one on the Gabbard whistleblower’s team — criticized Edward Snowden for not “going through proper channels.” Rather than blaming whistleblowers for not using corrupted channels, it’s time to admit that making the director of national intelligence an intermediary in the reporting process is a major error of the ICWPA. The position of DNI was created to fix major structural failures in how U.S. intelligence agencies coordinated before 9/11. It was supposed to improve information-sharing, not stymie it.

It has failed on all counts.

We don’t know why Gabbard continues to aggressively obstruct this whistleblower complaint. It sounds like she’s more concerned with protecting Jared Kushner, and perhaps Trump himself, than the public she’s supposed to serve. But we do know this: The ICWPA system for intelligence community whistleblowers depends on the knowledge, trust, credibility and good faith of the director of national intelligence. It’s a fatal flaw to make that person an intermediary, much less a gatekeeper, on a whistleblower’s path to congressional oversight. 

Tulsi Gabbard is clearly unqualified, unfit and too compromised for her job. But the ICWPA is ill-suited for those it is supposed to protect.