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Horowitz

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.

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.

The Intelligence Issues the House Intelligence Committee Largely Ignored

I watched or listened to most of the House Intelligence Committee hearing with Acting Director of National Intelligence Joseph Maguire this morning. And because both sides (with the very limited exception of Will Hurd) failed to raise the issues regarding the whistleblower complaint that go to the core of Maguire’s own equities, he was largely able to dodge the difficult issues.

Maguire’s own actions implicate whether IC whistleblowers will believe credible complaints will be treated appropriately. As Democrats noted, his first actions when he received a complaint implicating the President and the Attorney General were to refer to lawyers reporting directly to the President and the Attorney General. Maguire even pretended that Bill Barr’s role in this was not a significant part of the complaint to dismiss the worthlessness of referring this complaint to Bill Barr to investigate.

But there were three other key issues Maguire should not have been able to dodge.

First is the allegation that Trump moved the summary of this call to the covert communications system to hide the improper nature of the call. The whistleblower complaint said that this is not the first time the White House has done so. This is a clear abuse of the legal status of covert operations dictated by the National Security Act, something for which Maguire has direct responsibility. Covert operations must be communicated, by law, to at least the Gang of Eight in Congress. That Trump has politicized and misused this system discredits a core means of accountability for the White House, on Maguire’s job directly oversees. And yet he wasn’t asked how Trump’s actions undermine the legally mandated system of covert communications.

Then there’s the fact that Trump is premising policy decisions not on the best intelligence, but instead on how he can derive personal benefit from them. His doing so is a core abuse of presidential power. But — as I noted this morning — it also robs American citizens of the benefits the entire intelligence system is supposed to ensure. Maguire admittedly cannot force the President to make the right decisions. But the repercussions of premising policy decisions on personal gain for the national security of the US should be a concern of Maguire’s. That wasn’t mentioned either.

Finally, there’s the allegation that someone without clearance and entirely outside of the intelligence community was being asked to share and act on classified information derived from the intelligence community. Maguire at one point claimed that Trump can do whatever he wants with his personal lawyer and that such discussions would be privileged (after, at another point, dodging a question because he’s not a lawyer). That’s the height of absurdity. Rudy’s pursuit of policy actions has nothing to do with his role as Trump’s personal lawyer. And as the DOJ IG complaint against Jim Comey makes clear, sharing even retroactively confidential information with your personal lawyers — as Comey was scolded for doing — is not permissible. Yes, it’s true that as President Trump can declassify anything he wants (though Comey was original classification authority for the information he shared with his own lawyers), but others in the IC cannot share information with an uncleared person without formal declassification, or they risk their own legal troubles.

None of this came up in substantive fashion in today’s hearing by the people who are supposed to oversee the intelligence community.

ODNI Whistleblower Complaint: Shoes Dropping All Over the Place [UPDATE-2]

[NB: Check the byline. Updates are anticipated and will appear within the timeline or at the bottom of the text. /~Rayne]

In an effort to guess at the likely subject of a whistleblower complaint, the emptywheel community started a crowdsourced timeline of events surrounding the complaint received by the Intelligence Community Office of Inspector General on August 12.

As noted in the timeline, the House Intelligence Committee subpoena issued last Friday required the acting Director of National Intelligence (ADNI) Joseph Maguire to report to Congress about the complaint by Tuesday, September 17; failure to comply would require an appearance before Congress on Thursday, September 19. Maguire did not report as expected.

However dates for the ADNI to testify before the House have now been arranged:

. . .

[emphasis mine]

The Washington Post reported more details Wednesday evening about the whistleblower complaint:

Trump’s communications with foreign leader are part of whistleblower complaint that spurred standoff between spy chief and Congress, former officials say

One bit stood out for me in the lede:

The whistleblower complaint that has triggered a tense showdown between the U.S. intelligence community and Congress involves President Trump’s communications with a foreign leader, according to two former U.S. officials familiar with the matter.

Emphasis mine. Two former officials.

Speculation about the whistleblower’s identity is rampant across social media. Some suggest Fiona Hill, former Special Assistant to the President and National Security Council Senior Director for European and Russian Affairs, as the whistleblower; her planned departure in August was announced June 18. Others suggest an as-yet unnamed low-level analyst.

Marcy tweeted earlier,

It’s not outside the realm of possibility. Bolton seems in a mood to burn it all down, ‘shanking’ POTUS during a Trumpists-dense luncheon on Wednesday. But given the “two former U.S. officials” and former DNI Dan Coats interruption of a meeting to ask his deputy Sue Gordon to resign, I wonder if both Coats and Gordon resigned so they would be able to testify before Congress while escaping the appearance of being compromised by unethical or unlawful acts?

Important points for consideration:

  • What constitutes an “urgent concern” validated by the Intelligence Community Inspector General as credible?
  • What constitutes an unlawful act that would compel a whistleblower to file a complaint if the president can declassify information at will?
  • What kind of unlawful act characterized as an “urgent concern” could occur as a “promise” in communications with a foreign leader?
  • How does the existing timeline frame this “promise”?
  • Who is the “higher authority” who ordered the ADNI not to turn over the whistleblower complaint to the HPSCI, obstructing investigatory oversight?

Promising to violate or ignore violation of bipartisan sanctions against Russia would be unlawful, but would this be an “urgent concern”?

Was there instead an unlawful act with regard to the doxxing of the exfiltrated Russian asset?

Or was there a promise related to surveillance of North Korea?

Did the tensions between the U.S. and Iran spawn an unlawful promise?

There are probably dozens more scenarios that might fit. They may be related to items we didn’t add to the crowdsourced timeline, like these items directly related to North Korea:

28-FEB-2019 — Trump cut short the two-day summit with North Korea for no clear reason.

11-JUN-2019 — Trump received a “beautiful letter” from North Korea’s Kim Jong-un.

09-AUG-2019 — Trump received another “very beautiful letter” from Kim.

This one related to Iran:

03-SEP-2019New sanctions were placed on Iran after Trump administration claimed it was developing ballistic missile technology using its communications satellite program as cover.

And these related to Russia:

26-JUN-2019 — Trump told reporters that his anticipated discussion with Vladimir Putin at the G20 summit in Japan was “none of your business.”

31-JUL-2019 — Trump and Putin talked over the phone about Siberian wildfires and trade.

29-AUG-2019 — Trump’s trip to Poland canceled, ostensibly to monitor Hurricane Dorian though he ended up playing golf instead at his N. Virginia course. Was he avoiding conflict over increased Russian troop presence at the administrative border between Russian-occupied South Ossetia and Georgia? (Georgia has been pursuing NATO membership but is not yet a member state.)

Time will tell what other events were needed to pick out the narrative behind the complaint. One more data point may flesh out the nature of the challenge:

Is the complaint about a Trump-Russia issue alone, or does it also include a promise related to one of the other countries in the timeline — like North Korea or Iran?

Share your thoughts in comments with supporting content.

UPDATE — 19-SEP-2019 9:23 A.M. —

The ADNI should be in a closed door session with the House Intelligence Committee at this time.

Important to note that the IC IG is a Trump appointee — Michael Atkinson. He’s responsible for the determination that the unidentified whistleblower’s complaint was credible and an “urgent concern.”

ADNI broke the law as Amee Vanderpool noted here because the complaint was deemed credible:

Very, very odd how CNBC’s website news crawl makes zero mention of this unfolding story even though an NBC story confirmed WaPo’s report last night.

UPDATE — 19-SEP-2019 8:20 P.M. —

This is like a really cheap game of Clue. It wasn’t Professor Plum in the Library with a Lead Pipe.

It was Trump about Ukraine with a phone call to Zelensky, according to the latest report by WaPo.

(Although Trump does look like a crappy version of Colonel Mustard.)

Explains why the suggestions the matter was part of an ongoing investigation; the House was already investigating whether Trump and his lawyer Rudy Giuliani were trying to persuade President of Ukraine Volodymyr Zelensky to help dig up dirt on Joe Biden to help Trump’s 2020 campaign.

Now we need to know if the $250M aid to Ukraine was dependent on this matter, as well as a meeting later this month between Trump and Zelensky — and if Vladimir Putin had been involved in this exchange in any way.

Waiting for the next version of  “No Collusion!” tweets from Team Trump.

May explain why Rudy had been radio silent for three days on Twitter though he’s resumed his brand of trash talking in the last hour.