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by Causes | 9.25.19

The Dept. of Justice’s Office of Legal Counsel (OLC) on Wednesday released its legal opinion explaining its decision to withhold an intelligence community whistleblower complaint of “urgent concern” from Congress. The decision was an apparent violation of federal whistleblower laws governing the intelligence community (IC), which requires that credible whistleblower complaints classified as an “urgent concern” and received by the Director of National Intelligence (DNI) be forwarded to congressional intelligence committees within seven days after review.

On August 26, 2019, the inspector general for the intelligence community (ICIG) forwarded a complaint from an IC employee or contractor to the DNI concerning a telephone call between President Donald Trump and a foreign leader. The complaint alleged that Trump made comments that could be viewed as soliciting a foreign campaign contribution in violation of campaign finance laws.

After DNI received the complaint, it requested that the Dept. of Justice (DOJ) review the complaint because of the alleged campaign finance violation before forwarding it to congressional committees. DOJ sent the overall whistleblower complaint to the OLC, and referred the potential campaign finance violation to the criminal division for review.

The DOJ found that there wasn’t a criminal campaign finance violation to prosecuted because no “thing of value” was explicitly promised or exchanged as a result of the call. Meanwhile, the OLC explained why it withheld the report in the following portion of its 11-page legal opinion:

“The complaint does not arise in connection with the operation of any U.S. government activity, and the alleged misconduct does not involve any member of the intelligence, and the alleged misconduct does not involve any member of the intelligence community. Rather, the complaint arises out of a confidential diplomatic communication between the President and a foreign leader that the intelligence-community complaint received secondhand. The question is whether such a complaint falls within the statutory definition of “urgent concern” that the law requires the DNI to forward to the intelligence committees. We conclude that it does not. The alleged misconduct is not an “urgent concern” within the meaning of the statute because it does not concern “the funding, administration, or operation of an intelligence activity” under the authority of the DNI.”

The OLC opinion explained that the ICIG believed the president’s conversation fell within that meaning because the DNI is tasked with protecting against foreign efforts to interfere in elections, and because the president requires the DNI to issue a report assessing such interference efforts. It also provides some previously-unknown context about the whistleblower complaint, which hasn’t yet been declassified, in the following passages:

“The complainant alleged that he or she had heard reports from “White House officials” that, in the course of a routine diplomatic communication between the President and a foreign leader, the President had made statements that the complainant viewed as seeking to pressure that leader to take an official action to help the President’s 2020 re-election campaign. The complainant described this communication as arising during a scheduled call with the foreign leader that, consistent with usual practice, was monitored by a number of U.S. officials. Having heard about the President’s reported statements, the complainant expressed an intent to report this information to the intelligence committees...”

“Although the ICIG’s preliminary review found “some indicia of an arguable political bias on the part of the Complainant in favor of a rival political candidate,” the ICIG concluded that the complaint’s allegations nonetheless appeared credible.”

The full content of the whistleblower complaint may soon become public. The Trump administration is reportedly preparing to publicly release the whistleblower complaint before the end of the week, and are set to receive the complaint at 4 p.m. EDT today in advance of Acting DNI Joseph Maguire’s testimony in an open hearing before the House Intelligence Committee at 9 a.m. EDT on Thursday.

— Eric Revell

(Photo Credit: White House / Public Domain)

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