Bill Barr’s OLC Treated His Implication in the Whistleblower Complaint as Top Secret

Because I was on my epic road trip with June Bug the Terrorist Foster Dog, I’m just now reading some of the documents underlying the whistleblower complaint closely. Doing so makes it clear that Bill Barr’s DOJ (specifically, the Office of Legal Counsel) treated his implication by the whistleblower as Top Secret, even though the White House considered the fact only Secret.

This post relies on these documents:

  • The TELCON of the Trump-Zelensky call, treated throughout as Secret/NoForn
  • The unclassified whistleblower complaint with classified appendix, the latter of which has one paragraph marked Top Secret, one redacted, and other paragraphs marked Secret
  • ICIG Michael Atkinson’s letter to Director of National Intelligence Joseph Maguire; the letter itself, four paragraphs, and one footnote are marked Top Secret and something redacted (probably NOFORN), with a longer classification mark as a whole
  • The first version of the OLC memo dated September 3 deeming this not urgent; the memo itself, eight paragraphs of it, and three footnotes are marked Top Secret and something redacted (probably NOFORN), with a longer classification mark as a whole
  • The official version of the OLC memo dated September 3 currently available on DOJ’s website; it explains that after the underlying documents were declassified, it was released as an unclassified memo
  • A September 24 version of the OLC memo, described in the currently official September 3 one as an “unclassified version”

Here’s the editor’s note that describes why there are three versions of the OLC memo:

Editor’s Note: This memorandum was originally issued in classified form on September 3, 2019. An unclassified version was signed on September 24, 2019, and publicly released in slip-opinion form on September 25, 2019. That unclassified version avoided references to certain details that remained classified at the time it was signed. After the underlying documents were themselves declassified, the September 3 memorandum was declassified in its entirety and publicly released on September 26, 2019.

That suggests we can compare either September 3 version of the OLC memo with the September 24 one to identify what OLC itself (the name of the person who classified the memo is classified) claimed to be classified on September 3.

The ICIG letter makes clear that Atkinson had not yet read the TELCON when he wrote his letter. The whistleblower letter doesn’t say whether or not he read the TELCON (I’m using “he” to refer to the whistleblower because that’s the pronoun the NYT used). He explains that he believes all classified information in the letter is in his enclosure. He also reiterates that marking the information included in his unclassified letter with classification marks would,

violate EO 13526, Part I, Section 1.7, which states: “In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to: (1) conceal violations of law, inefficiency, or administrative error; [or] (2) prevent embarrassment to a person, organization, or agency.”

Among the information the whistleblower included in his unclassified letter is that Trump:

[S]ought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid. According to the White House officials who had direct knowledge of the call, the President pressured Mr. Zelenskyy to, inter alia:

  • initiate or continue an investigation into the activities of former Vice President Joseph Biden and his son, Hunter Biden;
  • assist in purportedly uncovering that allegations of Russian interference in the 2016 U.S. presidential election originated in Ukraine, with a specific request that the Ukrainian leader locate and turn over servers used by the Democratic National Committee (DNC) and examined by the U.S. cyber security firm Crowdstrike, which initially reported that Russian hackers had penetrated the DNC’s networks in 2016; and
  • meet or speak with two people the President named explicitly as his personal envoys on these matters, Mr. Giuliani and Attorney General Barr, to whom the President referred multiple times in tandem.

The ICIG letter marks the paragraph describing that part of the complaint as Top Secret, though it doesn’t include the specific allegations naming Rudy and Barr, It describes the gist of the complaint this way:

Here, the Complainant’s Letter alleged, among other things, that the President of the United States, in a telephone call with Ukrainian Volodymyr Zelenskyy on July 25, 2019, “sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid.”

But DOJ did see the TELCON of the call. Therefore, they would have known that the White House — the original classification authority for the content of the call — had deemed the entire thing Secret/NOFORN. Nothing in it was deemed Top Secret.

Among the things removed from paragraphs marked Top Secret in the September 24 memo are:

  • The date of the call
  • Zelenskyy’s identity and country
  • Approximately a dozen officials had listened in
  • A description of Trump pressuring Zelenskyy
  • The reference to election assistance
  • The citations to the ICIG letter
  • The references to Rudy and Barr
  • The ICIG deemed the complaint credible but did not conduct legal analysis on whether this was solicitation of a campaign contribution
  • OMB had cut off security assistance to Ukraine*
  • White House officials had moved the TELCON to the covert server*

The whistleblower treated the placement of the TELCON onto the covert server as Top Secret and the OMB detail as Secret, since neither of those appear in the TELCON marked Secret those are both properly treated by OLC as classified (though OLC bumped up the OMB detail to Top Secret).

But given that OLC took this language out of a paragraph that it marked Top Secret for its unclassified version, it must be treating this information as Top Secret.

The complainant alleged that he or she had heard reports from White House officials that in the course of a routine diplomatic communication between President Trump and Ukrainian President Volodymyr Zelenskyy, President Trump had “sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid.” ICIG Letter at 3 (quoting the complainant’s letter). Specifically, the complainant allegedly heard that the President had requested that the Ukrainian government investigate the activities of one of the President’s potential political rivals, former Vice President Joseph Biden, and his son, Hunter Biden. The complainant also allegedly heard that the President had requested Ukrainian assistance in investigating whether Russian interference in the 2016 U.S. presidential election originated in Ukraine, and that Ukrainian investigators meet with the President’s personal lawyer, Rudolph Giuliani, as well as Attorney General William Barr regarding these matters.

In other words, DOJ, after having reviewed a White House document that treated this information as Secret, instead bumped up the classification of it to Top Secret, including the detail that the Attorney General himself was implicated in the attempt to frame the President’s opponents.

It’s not just the White House that was abusing the classification system in an attempt to cover up what really happened here. It was also DOJ.

71 replies
  1. Rugger9 says:

    Plus, we have the Russian Ambassador’s input that their conversations are also privileged from scrutiny unless Russia agrees to its release.


    • BobCon says:

      I wonder if they’re going to claim it’s all copyrighted the way the Sc**nto**gi*ts did when they had leaks.

        • BobCon says:

          I’m pretty sure a nickle from every fan’s baseball ticket goes to the government for royalties for the national anthem. That would mean the government made $22 in royalties from Marlins games this season.

  2. readerOfTeaLeaves says:

    In other words, DOJ, after having reviewed a White House document that treated this information as Secret, instead bumped up the classification of it to Top Secret, including the detail that the Attorney General himself was implicated in the attempt to frame the President’s opponents.

    It’s not just the White House that was abusing the classification system in an attempt to cover up what really happened here. It was also DOJ.

    ‘Basket of deplorables’ seems quaint in retrospect…

    • Paul says:

      Boy the leadership of our country is in sad shape now.

      I’ve got my fingers crossed that Pelosi doesn’t limit the whole deal to Ukraine.
      The emoluments should be a fairly straight forward add on, and the IRS whistleblower stuff should be in there also.

      [Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Paul”. Thanks. /~Rayne]

    • Vicks says:

      Jeez they really are willing to sell out their country to establish whatever the hell their agenda is.
      I’m just trying to imagine what those conversations looked like, did Barr push the deep state nonsense as the reason he couldn’t go through the proper channels, say our agencies are incompetent and needed help, or just tell foreign officials to name their price?

    • pjb says:

      Can someone try to explain why Barr was in Italy in particular. I have seen it speculated they are trying to advance the Mifsud was a CIA plant/double agent nonsense, but why would Italy have anything useful for them? Does it relate to the fact that Mifsud is Maltese?

  3. The Lorem Ipsum Conspiracy says:

    I just wanted to drop two thoughts here:

    1. Bill Barr was the guy who started whitewater in order to dirty up Clinton when he was running for president.

    2. Previously Ms Wheeler has commented on how much Barr’s brain has been inebriated with fox news propaganda. Today’s revelations about Barr talking to australia and italy in order to discredit the predicate for the mueller probe seems to be the strongest proof yet that he’s a true believer in the papadope delusional narrative and not just a sly fox working for partisan advantage.

    • Rayne says:

      Might be the other way around — not that he’s been Fox’d, but that he’s on the feeder end of the propaganda industry, given his experience with Whitewater.

      (Cracks me up, btw, that piece you shared was by TPM founder Josh Marshall.)

      • dude says:

        From Marshall’s 2002 Salon article:

        “It would be fascinating to look more deeply into what communications took place between the Bush White House, the Justice Department and officials at the RTC in those desperate weeks and months before the first Bush presidency became history, and the scandal-plagued Clinton presidency, which was hunted by scandal-mongers, as we know now, well before he took office. But for that we will need a real investigation….”

        There is probably a Bush Presidential Library now with precisely this description of Barr’s modus operandi floating around in it.

    • Thebuzzardman says:

      So, maybe Barr was hired more for his ability to politicize an investigation as The AG, to ensure it makes the election timeline in the “right way” than his ability to cover up a scandal on behalf of the Unitary Executive he so adores.

      Obviously, it can be both, but makes you wonder.

  4. Somecallmetim says:

    Skeptical about inebriation. Maybe Barr is only in lesser loyal service to DJT, albeit in duct tape service to keep the GOP’s future prospects alive, even if it survives only as the Trump Rump.

  5. Thomas Paine says:

    What are the chances that the NSA has ALL of Trump’s calls to Putin logged and recorded via their taps on Putin’s and the Saudi Royal family’s phones at Ft. George Meade ? How can Trump stop the House Intel Committee from subpoena’s for THOSE transcripts ? NSA has more data on these types of things than even Trump can imagine.

    • rip says:

      Good question. I’ve heard that Ft. Meade/Utah is the “Nations’s Backup”.

      Cheney’s “Energy Conference” that was somehow not recorded can be found there.

      Discussions about certain presidents and national figures predicted outcomes may be there.

      If the KGB/FSB/GRU/Mossad have better records than those boys than US, we better up our game.

      As always, it’s easy to store the info. How to get it out.

    • Americana says:

      Putin’s obviously feeling the heat about their private phone calls because he’s now weighed in since the release of the Ukrainian transcript and stated that the U.S. has to get his permission to release any Trump-Putin private phone calls. It would be wonderful if there were enough material on Trump’s/Putin’s calls to complete the Trump circuit of corruption.

      Meanwhile, I’m curious what we’ll find out about the State Dept. IG’s “urgent meeting” w/Congressional leaders scheduled for tomorrow. How much will be known by tomorrow evening? Sounds like Sec/State Pompeo by issuing an edict telling State folks not to testify that he’s guaranteed a whole lot more whistleblowers will come forward.

  6. punaise says:

    Geez, what a quickly unraveling clusterf*ck.
    Unfortunately Moscow Mitch* will pull all the levers possible to kneecap a Senate trial.

    *(sorry bmaz, if it fits it hits – a well-earned monicker)

    • Marinela says:

      If house impeaches, as I understand it, the senate has to vote, but MoscowM can change the rules in the Senate to first vote if they can dismiss the impeachment using simple majority.
      This is why is so important the house writes good articles of impeachment, not narrow ones.

    • P J Evans says:

      The other nickname I’ve seen along this line is “Leningrad Lindsey”. I don’t know if it’s as accurate, but I’m trying to avoid it here.

      • punaise says:

        Agree, that’s kind of weak tea, or L in this case. Alliteration alone doesn’t make it work.

        Overall I see the value in exercising great restraint with using silly or derisive knick-names. Moscow Mitch is too perfect, though.

      • Tom says:

        I prefer “Malibu Lindsey” because of his wonderful sun-bleached hair, except for that little bit on top at the back where it’s missing because he lends it to Stephen Miller whenever he has a date.

  7. Fran of the North says:

    SCMTim: Bill Barr thinks he is the smartest guy in the room by far.

    To date, it is hard to argue otherwise. His theory of the unitary executive has been gaining credence and legal backing.

    IMHO he doesn’t give a rats ass about whether or not Trump survives or falls, he just wants his theories of presidential norms advanced.

  8. klynn says:

    Barr is so insulting toward Mueller and the citizens who served on the GJury.

    Mueller money quote:
    “They’re doing it as we are sitting here.”

  9. John B. says:

    Barr is a Tory. He should get one chance to escape to a British ship in the harbor or escape to Canada. If not, he should be tarred and feathered and run out of town on a rail.

    • dude says:

      On a whim, I asked the google what these countries had in common. There were lots of references to a couple of them at a time….trade treaties, etc. But then, in the “list more” drop down, I hit a site called Insider Monkey that listed the top eleven countries with highest percentage of white people based on CIA data and other data. Ukraine, Italy, Britain were all listed in the top eleven. Then I looked up Australia by itself and the google tells me it is 92% white. It’s just interesting what you can find on the internet.

      • Tom says:

        Yes, I don’t see how Trump, Barr & Co. can seriously think they’re going to just wish away the 450+ pages of the Mueller Report with all its supporting documents, interviews, criminal indictments and convictions, plus other evidence. Did we not all hear candidate Trump say, “Russia, if you’re listening …”? Have we not all read the emails that Don Jr. himself released confirming the Trump Tower meeting with self-identified agents of the Russian government? Did we not all watch President Trump in Helsinki state before the whole world that he accepted Putin’s denial that the Russians had interfered in the 2016 election when, according to last Friday’s WaPo report, Trump knew very well that it was, in fact, the Russians? I’m really intrigued to see what Barr comes up with in the way of evidence, unless his explanation clearing Trump and blaming the Deep State is going to be based on the old ‘absence of evidence is not evidence of absence’ line of argument. Or will he set up a team of investigators who will be assigned for the next x number of months/years to fill in the details of the Anti-Mueller Report?

  10. Yette says:

    Where are the Patriots @ DOJ? Nobody in the entire institution has the temerity and/or courage to expose this corruption? I can’t believe there are not some honest hard working folks in that organization that know of the Barr abuses. Nobody will come forward?

    IMO, you can’t say you believe in justice and the rule of law and then look the other way….

  11. klynn says:

    All this tax payer money being spent to fly all over to deep fake and discredit…

    POTUS, did not answer most of Mueller’s questions. That is the problem.

    We need a “Answer Mueller’s questions DTPOTUS” campaign. It needs to be loud.

  12. Mitch Neher says:

    Double take:

    “When the whole thing is over, things might get cleaned up with some presidential pardons,” Mr Giuliani told the New York Daily News.

  13. Mitch Neher says:

    And another double take:

    Vermont Sen. Patrick Leahy asked Barr if a president can “offer a pardon in exchange for the witness’s promise not to incriminate the president.”

    “No, that would be a crime,” Barr replied.

  14. Mitch Neher says:

    One last double take (with apology for length):

    To Hamilton fell the task of explaining the convention’s decision. In The Federalist, No. 65, he argued:

    The Convention thought the Senate the most fit depository of this important trust. Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve unawed and uninfluenced the necessary impartiality between an individual accused, and the representatives of the people, his accusers?

  15. klynn says:

    Maddow did a very good job with her Historical context of Trump’s “Undo List to help Putin” in last night’s broadcast. Glad the import of Crowdstrike came up during her interview.

    Trump puts Putin before the Constitution and the American people.

    • Tom says:

      I thought she did a good job of outlining the desperate straits that the Ukrainians are in with regard to the Russian invasion of their territory, and by contrast, how shabby and squalid Trump’s behaviour is in expecting “a favor” from President Zelensky before he gives him any military assistance. I guess that’s Trump’s idea of being a great deal maker.

  16. orionATL says:

    the special secutity classification “Secret/NoForn” is always ambiguous with respect to our president.

  17. orionATL says:

    words from elizabeth drew a wise old head:

    “… She relies heavily on her close friends, “my board of advisers,” she calls them. The writer she says has influenced her most is George Orwell.

    “He was someone who tried to bring a clear eye,” she said, glancing out at her back yard. “He had a moral base, and he cared about what was ahppening to his country and his world.”…”

    she’s right about Orwell, a master political analyst who understood that words and how they are used in politics matters a great deal.

  18. mospeck says:

    Just a spec based on the Slate Lithwick article, itself based on the Wapo NatSec Harris, Dawsey, Nakashima article.
    “Did the White House Hide a Bombshell Memo From Mueller?”
    “Trump told Russian officials in 2017 he wasn’t concerned about Moscow’s interference in U.S. election”
    Wapo points out there likely exists a memcon of the “infamous” 10 May 17 WH mtg. between trump, lavrov, kislyak that was never obtained by Mueller. This is the one where trump blew the top secret Israeli sources and methods to the russians and said firing Comey relieved great pressure on him. And those two bits were immediately leaked.
    Here Wapo and Slate reporters are implying that memcon is likely on the secret server (the code-word classified one).
    How would you (legitimately) get a super politically dangerous doc onto the secret server and away from access by the FBI? Spec that you’d have your flaky agent leak true code level compartmentalized info, and then leak out a few damnable facts about the meeting in order to provide cover.
    Who are these guys? Who is advising the trump gang who (supposedly) can’t shoot straight, with both great short term tactics and great look-ahead long-range strategy? Whoever they are, they’re good. I’ll just take a wild guess, the GRU.

    [FYI, second link edited to remove tracking. /~Rayne]

  19. dwfreeman says:

    Barr was appointed by Trump to become his fixer for the Mueller probe. In that role, Barr falsely summarized the Mueller case against Trump, turned Rosenstein to back his view of its findings and then proceeded to launch any number of internal investigations into the origin of Russian election interference based on claims of FBI spying.

    As Justice overseer, Barr can block or hinder any request for investigation by his department or alter its status and progress on whatever ground seems legally justifiable. Barr was hired, however, to prevent Trump from being impeached based on the Mueller report and help muddy the waters for Trump’s continued ability to seek foreign assisstance in his re-election effort.

    This has been augmented by the party itself in preventing House-passed election reform legislation from being considered in the Senate and Trump’s slow-walk of sanctions enforcement on Russia. At the same time, Trump engaged Giuliani to dig up whatever dirt he could find in the Ukraine to bolster or support conspiracy theories about Hillary emails on secret servers, Joe Biden and Hunter Biden corruption prosecution failures, and efforts to clear Manafort and his Ukraine political activities from soiling conspiratorial sagas.

    Lest we forget, there were Guardian press reports that Manafort hooked up with Wikileaks several times before he was ever considered as a potential candidate to join Trump’s presidential campaign. And he was hired in much the same way that Barr got his appointment, by letter of introduction to Trump.

    The question that Congress needs to ask DOJ and White House officials in addition to the CIA’s general counsel who tipped off Justice about the original whistleblower complaint is why they felt compelled to blow the whistle on the whistleblower instead of handling the complaint based on proper protocol. Elwood’s tip off enabled Justice to craft a defensive position that would have cleared the administration from any scrutiny on the Zalensky call.

    OLC told Maguire that he wasn’t bound to make the WB complaint available to Congress, a position that curiously resembles the one that Barr tried to posit in the run-up and unveiling of Mueller’s report. You can make it available but DOJ argued, we don’t see anything here worthy of further legal review and possible prosecution.

      • BeingThere says:

        This got my antennas up. Just heard about it on MSNBC this evening. Last time he crossed my tracks was in late Aug 2016 when he was caught in deep talks with Kislyak along with Kushner and McFarland in Budapest, making an ask for things that “Trump wants”, “Trump needs”, and “have to do for Trump”.

  20. P J Evans says:

    How bonkers the current occupant of the WH is:

    The Oval Office meeting this past March began, as so many had, with President Trump fuming about migrants. But this time he had a solution. As White House advisers listened astonished, he ordered them to shut down the entire 2,000-mile border with Mexico — by noon the next day.

    The advisers feared the president’s edict would trap American tourists in Mexico, strand children at schools on both sides of the border and create an economic meltdown in two countries. Yet they also knew how much the president’s zeal to stop immigration had sent him lurching for solutions, one more extreme than the next.

    Privately, the president had often talked about fortifying a border wall with a water-filled trench, stocked with snakes or alligators, prompting aides to seek a cost estimate. He wanted the wall electrified, with spikes on top that could pierce human flesh. After publicly suggesting that soldiers shoot migrants if they threw rocks, the president backed off when his staff told him that was illegal. But later in a meeting, aides recalled, he suggested that they shoot migrants in the legs to slow them down. That’s not allowed either, they told him.

    His sadistic side coming out, it would appear. Another reason for getting him out of office, as if we needed more – but this might get through to some people.

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