DOJ’s Inspector General (and 70 Colleagues) Says DOJ’s Lawyers Fucked Up

On Tuesday, the Council of Inspectors General on Integrity and Efficiency just sent OLC head Steve Engel a scathing letter criticizing his opinion that Acting Director of National Intelligence Joseph Maguire could not share the whistleblower complaint about President Trump’s July 25 phone call with Volodymyr with Congress. Generally, its content says about what you’d think:

  • ICIG was right to complain about OLC’s decision in a September 17 letter
  • ICIG was about DNI’s jurisdiction over federal elections and classification of information
  • OLC’s opinion could impair whistleblowing
  • OLC’s opinion deviates from Congressional intent on IC statutes, as backed by both Chuck Grassley and Mark Warner
  • OLC did not raise any valid constitutional concern, but instead simply substituted its judgment for the ICIG’s

But I’m more interested in what it means that CIGIE’s Chair, Michael Horowitz, wrote it. Horowitz also happens to be DOJ’s Inspector General, the same guy Bill Barr has loaded up with investigations designed to take down Trump’s critics, someone whom the frothy right has invested a lot of their respect.

Don’t get me wrong. I’m sure Horowitz would have written the letter in any case, even if he weren’t DOJ IG. He’s a fierce protector of IG prerogatives, which is one reason why he’s the Chair.

Horowitz is also a brilliant tactician who has used his positions–both as DOJ IG and as CIGIE head–to assert his authority. Just as one very key example, after a several year fight with FBI, he managed to get broad access to FBI’s files for IG investigations. In another example, he managed to investigate lawyer Jim Comey (in his administrative role) even though generally such investigations get done by DOJ’s Office of Professional Responsibility.

And I view this letter, in addition to being a very public and powerful stand on an important principle, as a tactic. One thing the letter does, for example, is lay out that a top DOJ lawyer violated Congress’ intent on how Inspectors General are supposed to work. That’s the kind of thing that — if my years of watching Horowitz are any indication — we may hear the next time Horowitz testifies about his work and the scope of DOJ’s IG, which is limited in ways that other IGs aren’t.

More interesting, given the abundant proof that DOJ worked hard to avoid connecting the dots on this complaint, is Horowitz’s footnote noting that DOJ and FBI have responsibilities to investigation interference in our elections seems

The fact that other parts of the government, such as the Federal Bureau of Investigation and the Department of Justice, also have responsibilities in this area does not divest the DNI of such duties as a matter of law or practice.

Horowitz may not have the authority to investigate Steve Engel, but he does have the authority to investigate the people who found ways not to investigate this complaint competently, and his concern on OLC may reflect a concern on what else happened at DOJ.

Horowitz also maps out broad authority for ICIG to continue to investigating both the allegation itself and (importantly), the misuse of the Top Secret server to hide other problematic call transcripts.

These responsibilities support the ICIG’s conclusion that the protection of federal elections from foreign interference is squarely within the DNI’s “operations”. The legal authorities cited in his letter also support the ICIG’s determination that the whistleblower raised a claim of a serious or flagrant problem that relates to an intelligence activity within the DNI’s jurisdiction. It surely cannot be the case that the DNI has responsibilities related to foreign election interference but is prohibited from reviewing the cause of any such alleged interference.

We further note that the DNI has jurisdiction over the handling of classified and other sensitive information. As a result, the whistleblower’s allegation that certain officials may have misused an intelligence system also raises an additional claim of a serious or flagrant problem that relates to the operations of the DNI and therefore may properly be considered an urgent concern under the statute.

We actually don’t know whether ICIG has continued to investigate this issue. But Horowitz lays out the case that he has the authority to.

Finally, Horowitz focuses on the delay that OLC’s opinion had, preventing Congress from learning about the complaint by September 2 (when, by law, they should have received the whistleblower complaint).

As Congress has done in every other whistleblower law passed since 1978, it entrusted IGs to play a central role in the evaluation of the information provided. Specifically, the ICWPA requires an IG to make within 14 days a factual determination as to whether an alleged urgent concern provided to the IG “appears credible.” If the IG determines that the allegation appears credible, which necessarily includes a determination by the IG that it involves an “urgent concern,” the IG is required to forward the allegation to the head of the agency and the agency head “shall” forward it to Congress within 7 days “with any comments.” The ICWPA’s use of the word “shall” makes it clear that the statute does not authorize the agency head, or any other party for that matter, to review or second-guess an IG’s good faith determination that a complaint meets the ICWPA’s statutory language.

Congress only received the complaint on September 25, an illegal delay of 23 days, during which time Trump released the withheld funds and had a meeting with a much-weakened Zelensky, to say nothing of whatever meetings Rudy and Bill Barr had in the interim. While it’s unlikely to happen, Horowitz’s language at least lays out the clear impact of Engel’s opinion in obstructing Congress’ ability to be able to deal with this issue in timely fashion.

Thus far, the American public has had little success at disciplining OLC lawyers for the bullshit they cause (though even courts are inching closer to doing so). This letter seems, to me, like the first step in an attempt by Horowitz to be able to do so.

63 replies
  1. Millard Filmore says:

    “On Tuesday, the Council of Inspectors General on Integrity and Efficiency just [sent] OLC head Steve Engel”

    I think you left out a word in the lead sentence.

    Also I am a bit confused on the second bullet point:
    “ICIG was about DNI’s jurisdiction over federal elections and classification of information”

  2. bowtiejack says:

    OLC has seemed to me for sometime to be more like a corporate law department than anything else. Although I haven’t run this down (how would you?) I suspect it’s staffed with the sort of apparatchiks who rotate in from big firms and corporate law departments to make their government chops and then go back to their real jobs defending monopoly capitalism or fossil fuel global warming. But that essential craven mind set is always there, no matter how smart they are supposed to be or what elite law school they graduated from. After all, weren’t a high percentage of the SS Ph.D.’s? How’d that work out? John Yoo? I rest my case.

    • AMG says:

      Well, it’s not OLC, but OLP – aka the Office of Legal Policy – has a senior counsel by the name of “Brady Toensing” as in, the son of Victoria Toensing and step-son of Joseph diGenova.

      And of course, those two were last seen representing Firtash in his extradition fight with the US.

      • John Paul Jones says:

        In my (limited) experience, kids don’t always take after, support, or agree with their parents’ choices, so I’d prefer to wait and see how Brady shapes up. Even if he got the job via connections, doesn’t make him a creature, necessarily, of those who connected him. How many sons hate their fathers? Quite a few (says Sigmund).

        • P J Evans says:

          There are a lot of kids in this maladministration who got in because of their parents. More than the usual percentage, I’d say.

          • Xboxershorts says:

            I noticed a heightened level of nepotism in this administration too. And not just Javanka and the boobsy twins either.

            Did Trump inadvertently shrink the Conservative bench of specialists by insisting on loyalty to the man as opposed to the office?

          • Blanche says:

            Apparently Brady is Victoria Toensing’s son? The Victoria Toensing who, with husband Joe DiGenova, are frequent Fox TV guests and who employed the (recently arrested) former Fred Trump condo salesman turned Fraud Guarantee CEO turned Giuliani “colleague” Lev Parnass as translator in their work for Ukraine gas industry oligarch Dmytro Firtash. The same Firtash (currently in Vienna) fighting extradition to the U.S. who appears to be the source of funds provided to Parnass, and his partner Igor Fruman, that they subsequently donated to the Sen Marco Rubio, Sen Kevin McCarthy, Sen Rick Scott, West VA AG Patrick Morrisey, FL Gov Ron DeSantis, U.S. Rep Brian Mast campaigns, and to a Pro-Trump Super PAC chaired by Tommy Hicks, friend of Don Jr.’s, Trump Inauguration official, and RNC Co-Chair (those are the only donations I can think of offhand). Firtash is also known to have a fierce vendetta against Joe Biden for Biden’s work (during his Vice Presidency) on gas industry corruption in Ukraine that greatly affected Firtash’s cash flow. Per a Politico article of 10/24/19 Firtash paid Victoria Toensing and DiGenova $1 million to find ‘dirt’ on Biden. DiGenova and Toensing also happen to represent John Solomon a far-right author who advanced and perpetuated the Trump/Russia-friendly conspiracy narrative re:Biden/Ukraine that Giuliani, Parnass, and Fruman were seeking to inflame.

            I don’t pay that close of attention, but their names are so unusual that they draw attention, and then come-to-find-out, they all know each other and/or are related.

        • ernesto1581 says:

          Brady Toensing has been mucking about Vermont for years as a one-man posse on behalf of the troglodyte state Republican party here, with particular animus toward the last two Democratic attorneys general, Scott Sorrell and TJ Donovan, Jane Sanders, and state rep. Chris Pearson, among others (see Vicks’s citation. also https://vtdigger.org/?s=brady+toensing for more thorough accounting of Toensing’s Excellent Adventures in Arcadia.)
          He joined mom and step-father in DC late last Spring, if I remember, to put his shoulder to the crooked wheel. In this case, JPJ, I assure you the pat falls not far from the cow at all.

          (I must add, however, that both Sorrell & Donovan could use a good toasting for their egregious lack of transparency on an assortment of issues in the peoples republic over the last several years.)

  3. DrT says:

    ‘ On Tuesday, the Council of Inspectors General on Integrity and Efficiency just OLC head Steve Engel’ — missing verb

  4. Jack Assels says:

    Another copy editing item: In the first sentence, ‘Volodymyr’ should probably be ‘Volodymyr Zelenskyy’, or possibly just ‘Zelenskyy’.

  5. OldTulsaDude says:

    The OLC has established itself as a de facto supreme court within the executive branch. Is there any wisdom in challenging that authority via a state moving to indict the president for a state crime?

  6. skua says:

    So many resouces being soaked up in the struggle to address corruption at the top will be leaving other areas under-managed, under-supervised.
    We might get to see what effect a distracted upper management has on the policing of garden-variety organised crime.

  7. earlofhuntingdon says:

    I’m a little cornfused about Rudy Giuliani’s apparently mistaken phone calls. A “butt dial” is when you press your phone and call a contact without knowing it. The caller doesn’t know a call’s been made, the person called hangs up or the call goes to voice mail, and any message is room noise or static.

    How is it, then, that Rudy left long detailed messages? On a delicate subject a good lawyer would not commit to voice mail?

    It seems more likely that Rudy negligently called the wrong number. He didn’t listen to the identifying message or number, to confirm he had the right one. He left a message he should have never left. That’s a fuck up, not a butt dial. If that’s the scenario, I don’t see how privilege applies.

    • earlofhuntingdon says:

      Apologies. I missed that it was apparently a butt dial, it went to VM, which captured an in-room conversation Rudy had with a third person. That’s a different fuck up. One he apparently makes a lot.

      Rudy runs a “security consulting company.” And he still has clients?

      • P J Evans says:

        I suspect they’re the kind of clients for whom the consultant’s name and fame (or notoriety) are more important than the actual services they receive.

      • SomeGuyInMaine says:

        Yeah, he has ‘clients’ like Fraud Guarantee.

        (That name always seems like a promise than an actual client).

      • Hcgorman says:

        My first thought was that he was trying to let someone he knows listen in and he called the wrong number. One “butt call” to this reporter might be believable with this clown but not more than one.

        • bmaz says:

          Who knows, but from the content, I’d guess it was truly just clownery.

          I had a kind of funny butt dial call late one night. A friend had been downtown for a basketball game and called me on the way out (he went on my season tickets). Later, I got a butt dial call from him literally as he was being pulled over for DWI. I heard the entire thing and was trying to scream “Hey officer, I am his attorney, pick the phone up!” Nobody heard anything. The next morning, friend calls wanting me to represent him or refer him. I was like “I know, I heard the whole thing”.

          • SomeGuyInMaine says:

            Wow, butt dialing your attorney while getting cited — that’s talent.

            And hilarious, well now anyway.

            • bmaz says:

              Eh, some laughs were had even back then. He was much more my friend than client before then though. I felt kind of shitty because I had given him the tickets to the game because I could not go, else he would have never been downtown that night.

    • harpie says:

      HumanScumHat [Popehat] wrote a play about it:
      10:54 AM – 25 Oct 2019

      Giuliani: So, you see, I need you to dig up dirt on these Turkish companies, or else my client Joe Biden won’t let the Russians . . . wait a minute.
      Ukrainians: . . . .
      Guiliani: [pulls out flow chart on dog-eared piece of paper]: Shit. Okay. Start over. […read the whole thing …lol…]

    • Bri2k says:

      I’ve read some takes on this over on TPM and other places which say this call was intentional and that makes sense to me because most of it was smearing Biden. Also that $20K bit doesn’t sound real to me because it’s not a lot of money to these people. I read Rudy is worth $60 mil, so scraping together what amounts to pocket change strikes me as a pretty obvious tell.

    • Americana says:

      My understanding of the situation is that Rudy Giuliani was talking w/someone either in his office or on another phone (an office land line?) while he’d somehow activated his cell phone which called the NBC investigative reporter’s cell phone. These were not voicemail messages left by Rudy G. on the NBC reporter’s phone. These were calls that were passive voicemail drops on the reporter’s phone. Rudy is heard in both calls interacting w/someone who knows what the scoop is on the inside of Ukraine events et al.

      I’m curious if anyone else listened to these calls and felt this was not perhaps an accidental butt-dialing incident given the nature of the calls? Yeah, the calls are seemingly damning in some ways but they’re also big on justifying the actions Giuliani and Trump are taking as being needed to protect Trump from corrupt Dems. These calls are seemingly yet another variant of Trump’s “the best defense is a good, dirty offense.”

      If Giuliani is this careless w/his phone, why hasn’t this butt-dialing behaviour been reported as having happened previously to lots of Rudy’s contacts? Why is this Rudy G. ineptitude happening right now and it’s only about calls regarding Ukraine corruption? Something just doesn’t seem quite right about this whole butt-dialing business even if the audio seems to indicate they’re discussing this stuff on the QT. It’d be nice if an investigative org could get their hands on Rudy’s phone and examine it and run tests to see the quick dialing #s Rudy’s set up on his phone.

      • bmaz says:

        Oh, good grief. Yes, sure, why are there not a thousand, A MILLION!, Rudy butt dial calls out there in the public record. Seriously, stop.

        • Americana says:

          That’s a perfectly reasonable question to ask. I’m curious why’d you dismiss that premise without any investigation. You always take events/coincidences at face value? What kind of criminal lawyer does that?

          You ridiculed me a few months ago for suggesting Sidney Powell was going to go for the dismissal of all charges against Flynn just because Flynn had already pled guilty and had a plea agreement (as if that is the end of the road) and yet, here that babe is, going for dismissal of all charges.

          • bmaz says:

            Hi there “Americana”. I did ridicule you, but not as much because of what you suggested the idiot Powell was going to do, but because you seemed to think it a sane path. It was not then, and it is not now.

            And, by the way, I am the “kind of criminal lawyer” that is not a batshit crazy and incompetent Fox News flunky like your “babe”, Sid Powell. Garbage like this is exactly why you are in permanent moderation.

          • P J Evans says:

            Powell isn’t going to get those charges dismissed. Flynn was under oath at the time he was answering questions in court, and if he was lying then, it’s perjury – another offense with jail time. Plus all of the stuff Powell is whining about is normal procedure, not something they did just because it’s Flynn.

    • obsessed says:

      >the person called hangs up or the call goes to voice mail, and any message is room noise or static.

      1. First, this reporter was asleep and got the message (exacty 3 minutes) upon checking voicemail
      2. I get these all the time, both live and on voicemail. You see the caller ID and you hear everything going on in the room (the clarity depends on whether the caller has the speaker on and other factors). I can usually hear everything clearly enough (like the audio we’ve heard), and it’s usually quite boring. I guess I should spend more time with Booty Giuliani if I want more interesting messages.

      I thought the best analysis of it was by Mimi Rocah with Ali Velshi on the Chris Hayes show.

  8. skua says:

    That letter that emptywheel links in the OP is worth a read.
    SNL might present it as Mr Engel being seated, strangely low in his chair, in a high-end dining establishment when a very formally dressed waiter approaches with a trolley bearing a dish covered with a large silver cloche.
    The waiter bows to Mr Engel, straightens, and then turns and lifts the cloche, saying, “Your arse is served sir”.

    • Bay State Librul says:

      If the Dems when the election, can the new AG cough up Barr’s damaged plane and have him dis-barred?

      • SomeGuyInMaine says:

        I realize it may be at typo, but I like the phrase ‘when the election.’

        It’s sort of a nice reminder that in the longer term things do swing back and forth — what goes around comes around.

  9. Lazlow K. Hud says:

    “Horowitz also maps out broad authority for ICIG to continue to investigating both the allegation itself and (importantly), the misuse of the Top Secret server to hide other problematic call transcripts.”

    I don’t think so. The White House doesn’t fall under the auspices of the ICIG because it is not part of the Intelligence Community. The ICIG would have no jurisdiction over the “Top Secret server”, used, in part to prevent resistance holdover personnel from leaking classified conversations to the media.

    That’s pretty much why the OLC told the the ICIG to take a run and jump. That and other shenanigans like changing the first hand reporting requirements after the fact.

    • AtticusFlinched says:

      Respectfully, this is bullshit and/or trollery.

      Release of CLASSIFIED information is ALREADY a FEDERAL CRIME. Trump minions don’t need to hide this stuff from already-cleared White House staff who have always monitored such calls — especially a “largely congratulatory” call (farcical, of course, since it’s a matter of record that His Ignorance already called Zelensky with congratulations in APRIL) and which has subsequently been shown to contain exactly ZERO classified content — to prevent them from committing a crime they’re not committing. So that’s not why these call transcripts are concealed on the most secure network in the White House. It’s merely embarrassment-control and covering up criminal malfeasance. Just ask the White House lawyers who immediately sprung into action after hearing what was SAID on the call (again, NONE of it classified).

      Also, the “changing the first hand reporting requirements after the fact” ruse has already been extensively debunked. THE WHISTLEBLOWER LAW NEVER CONTAINED AND DOES NOT NOW CONTAIN ANY SUCH REQUIREMENT. The recent version of pdf form used to initiate complaints was revised to remove the conflicting language in a HEADING which contained that guidance (which, again, had no foundation in the law), so it was updated to comport with the actual legislation.

      So, you’re 2-for-2. Both Trumplestiltskin talking points. Take it somewhere else, not here where even the amateurs/laymen/too-infrequent-visitors (like myself) can see through your bullshit. Or maybe, like so many of your brethren, you just can’t/don’t read. Either way … sad.

    • bmaz says:

      I am not sure how this comment got through, but it is complete batshittery. First off, you mischaracterize the nature of the server, which as it contains, and links to, intelligence products most certainly is within the purview of the IC.

      Secondly, you spew the Fox News flagrantly false talking point that the “first hand reporting requirement” was changed. We don’t allow trollery and misinformation here. And I am being kind with the word “misinformation”, because you are propagating an outright lie. It started with a false report by a blithering idiot at The Federalist by the name of Sean Davis, and morphed into a Trump and Fox News talking point. It is completely and unequivocally bogus.

      You have been here for six comments, all mostly this month. All were troll comments. You will be treated as such, and readers should treat you as such. Bogus Fox News propaganda does not work here.

  10. SomeGuyInMaine says:

    I’m glad Horowitz is drawing appropriate attention and scrutiny to this OLC opinion.

    I still puzzle over the part where the chief executive is not part of the Intelligence Community. Ok, maybe. But then he just stops.

    Much of the alleged wrongdoing was by the president. It was found to be a credible complaint.

    How can the he justify just stopping? Doesn’t this require some other investigative or corrective action? When does a special counsel need to be appointed?

    I’d love to have Steve Engel explain this to Congress.

    • Bri2k says:

      The circular logic of “the president is not part of the intelligence community” is just about as honest as saying Jeff Bezos has nothing to do with Amazon’s marketing. OK, he may not be on the marketing dept roster, but that’s because he’s in charge of the whole damn company!

      The cognitive dissonance these days is enough to lead one to drink. Or lead one to drink even more. That screaming you hear is just my liver…

  11. Shell4747 says:


    Horowitz also maps out broad authority for ICIG to continue **to investigating** both the allegation itself and (importantly), the misuse of the Top Secret server to hide other problematic call transcripts.

    Either leave out the “to” or make it “to investigate”
    don’t try to have it both ways :D

  12. Midwest says:

    naive question?–did Maguire act in good faith, as a willing patsy, or as an unwilling patsy with regard to the delay (That’s three alternatives, just to be clear) In his testimony, was he trying not to drown or was he stonewalling?

    Also, is this to imply that the delay was in part to ensure that the funds had a chance to get released before this got to Congress?

  13. Lazlow K. Hud says:

    Tough room!

    Admittedly I come from what Marcy calls the ‘frothy right’. But i’m Here for a reason. What’s written here tends to ring a bit clearer.

    Question: is Tom Fitton at Judicial Watch to be believed or is if all BS?

  14. skua says:

    There is an article that gives (one interpretation) of the context of the letter from the IGs cited in the OP at

    Frankly, I do not have the chops to evaluate the article.
    It presents Horowitz as being in a long struggle to prevent Department heads from continuing obstructing the investigations of IGs.
    Horowitz’s fight appears to be towards what would be reasonable limits on the power of appointees of the Executive.

    Particulary salient to Engel et al, is Horowitz’s flagging as problematic the ways that misconduct by Depatment attorneys around their legal oppinion is not as available for intervention by the IGs as other misconduct,
    “The OIG has long questioned this distinction between the treatment of misconduct by attorneys acting in their legal capacity and misconduct by other Department employees, and such a system cannot help but have a detrimental effect on the public’s confidence in the Department’s ability to review misconduct by its own attorneys.”

    Beefing up IG powers with supporting and clarifying legislation seems one way to limit future Trump-type Presidents.
    (Assuming of course that there is a suitable future in which to limit such excesses. )

  15. CD54 says:

    Repeating again:
    Trump and the Republicans are displaying classic mob psychology (little “m”) — someone in the group acts outside of normative values and waits for any group backlash. After none, someone else feels impervious to consequences and goes to an even further extreme and the group watches for any sign of group disapproval. Escalate until stopped.

    • Vicks says:

      Friday night i asked my son and his gf to stop at my local pet store before we went to dinner, I thought it would be a quick errand but we ended up spending about 45 minutes in the shop speaking with a behaviorist who worked there (and buying a guinea pig for my son’s girlfriend)
      While we were talking I couldn’t help but apply his training techniques to Trump and “those people” who have been allowed to take over our White House.
      When you want a bird to walk in a circle or a goldfish to swim through hoops you have to first figure out what motivates them most and then dish it out in increments to reward behavior.
      A key factor in getting Trump elected was Trump knowing what motivated the groups Hillary called “the deplorables”
      Trump seemed to throw them bones on some sort of intuitive schedule. Dog whistles, environmental rollbacks, calling out abortion etc all seemed to rotate through his tweets and rants.
      As Trump built his power and he was able to give away bigger prizes, more people got off the fence and began rallying around his causes regardless of what they were.
      At the same time others saw how easy Trump was to manipulate through money and praise.
      I think we may need to look beyond foreign dictators at some of these relationships where Trump seems submissive.
      William Barr comes to mind, his religious crusade seems to be getting more attention just as Trump’s reliance on Barr shameless crapping on our constitution is increasing

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