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Horowitz

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

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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

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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 CIA Affiliation of the Whistleblower Isn’t the Key, It’s CIA General Counsel’s Role in a Cover-Up

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The second paragraph of the NYT story that identified that the Ukraine whistleblower as a CIA employee describes the CIA’s General Counsel, Courtney Simmons Elwood, telling first the White House and then DOJ about the complaint.

The officer first shared information about potential abuse of power and a White House cover-up with the C.I.A.’s top lawyer through an anonymous process, some of the people said. The lawyer shared the officer’s concerns with White House and Justice Department officials, following policy.

Starting on paragraph 15, the NYT provides more details about how and why Elwood responded to a whistleblower complaint by running to the people who were implicated by it (and note, it says this was proper, as it may well have been — I’m not saying Elwood has legal exposure here).

The week after the call, the officer delivered a somewhat broad accusation anonymously to the C.I.A.’s general counsel, Courtney Simmons Elwood, according to multiple people familiar with the events. The initial allegations reported only that serious questions existed about a phone call between Mr. Trump and a foreign leader.

As required by government policy, Ms. Elwood had to assess whether a “reasonable basis” for the accusation existed. During the preliminary inquiry, Ms. Elwood and a career C.I.A. lawyer learned that multiple people had raised concerns about Mr. Trump’s call.

Ms. Elwood also called John A. Eisenberg, a deputy White House counsel and her counterpart at the National Security Council, according to three people familiar with the matter. He was already aware of vague concerns about the call.

Ms. Elwood, Mr. Eisenberg and their deputies spoke multiple times the following week. They decided that the accusations had a reasonable basis.

Mr. Eisenberg and Ms. Elwood both spoke on Aug. 14 to John Demers, the head of the Justice Department’s national security division, according to three people familiar with the discussion. Ms. Elwood did not pass on the name of the C.I.A. officer, which she did not know because his concerns were submitted anonymously.

The next day, Mr. Demers went to the White House to read the transcript of the call and assess whether to alert other senior law enforcement officials. The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter.

A CNN story provided the detail that NYT (and AP) missed: when and how Barr learned he was implicated personally.

Demers went to the White House to review the transcript of the call on August 15. His office then alerted other senior Justice officials that Barr was mentioned on the call.

Since they NYT story came out, a lot of people have attacked it for revealing where the whistleblower worked. Dean Baquet claimed they did so to lend credibility to the story, a thoroughly ridiculous explanation (especially in the wake of the transcript release, which made it clear the complaint was corroborated by the White House’s own record of the call).

What is, instead, the important detail is that everything Elwood did in the wake of receiving the report, whether intentionally or not, not only served a cover-up, but also put the whistleblower at heightened risk. We may not know the ID of the whistleblower, but the White House, which now includes all the former Devin Nunes aides who were so critical to blowing up the Russian investigation in 2017, would have been able to identify who was seconded to the White House as soon as Elwood brought the complaint to the White House. And Elwood is, in significant part, responsible for that. So it’s not the whistleblower’s affiliation, but Elwood’s, that’s important, and Elwood’s alone identifies where the whistleblower works (and did, for the White House, over a month ago).

The really important part of this story — which is clarified when adding the CNN detail that Demers and Brian Benczkowski and Jeffrey Rosen knew their boss was directly implicated when they decided to scope the prosecutorial analysis very narrowly, completely ignoring the kind of quid pro quo that the Constitution explicitly names as a reason to impeach the President — is that those implicated had the opportunity to cover-up the investigation even before the whistleblower filed his formal complaint. And once he did that, DOJ did things (may have felt forced to) that tried to further suppress their earlier decisions, most notably by getting an OLC opinion that ruled the proper resolution of the complaint — which OLC deemed not to be urgent because it ignored that Bill Barr, the State Department, and those who hid the communications on the covert server were also implicated, and by association Barr’s efforts to feed intelligence into John Durham’s investigation — was to have people at FBI reporting to Bill Barr investigate. Whether the implication of those others makes this an IC complaint (the most obvious way it does is in the abuse of classification authority to hide the transcript) is a matter requiring analysis, analysis that Bill Barr’s direct report, Steven Engel, did not do.

And that’s the point (or should have been): The NYT named a number the people who may be involved in this cover-up: John Eisenberg, John Demers, Brian Benczkowski, Jeffrey Rosen, and CIA General Counsel Courtney Simmons Elwood. Elwood is the one who first approached the problem in such a way that a cover-up would be possible.

Yes, by relaying that detail, the NYT told all of us that the whistleblower is a CIA employee. But the people involved in the cover-up, and the firebreathers at NSC, already knew that.

Don McGahn Is Not the Most Critical Witness on Impeachment

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In the last several days, Jerry Nadler has stated more and more clearly that his committee is conducting an inquiry on whether to file articles of impeachment. Six months after gaining the majority, this feels like a slow walk perhaps intended to time any impeachment vote based on how it will impact the election.

In its press release and complaint seeking to enforce its subpoena against Don McGahn last week, the House Judiciary Committee made an alarming claim: that Don McGahn was the most important witness in its consideration of whether to file for impeachment.

McGahn is the Judiciary Committee’s most important fact witness in its consideration of whether to recommend articles of impeachment and its related investigation of misconduct by the President, including acts of obstruction of justice described in the Special Counsel’s Report.

That claim suggests that the House Judiciary Committee has a very limited conceptualization of its own inquiry and perhaps an overestimation of how good a witness McGahn will be.

McGahn’s probably not as credible as HJC Dems think

I say the latter for two reasons. First, in the early days of the Russian investigation, McGahn overstepped the role of a White House Counsel. For example, even after his office recognized they could not talk to Jeff Sessions about the Russian investigation or risk obstruction, McGahn followed Trump’s orders to pressure Dana Boente on the investigation.

At the President’s urging, McGahn contacted Boente several times on March 21, 2017, to seek Boente’s assistance in having Corney or the Department of Justice correct the misperception that the President was under investigation.326

Curiously, McGahn and Boente’s versions of what happened are among the most divergent in the entire Mueller Report, which might suggest McGahn was less than forthright in testimony that, per footnotes, came in one of his earlier interviews.

Plus, as the Mueller Report acknowledges, the NYT story that triggered one of the key events in the report — where Trump asked McGahn to publicly rebut a claim that he had asked McGahn to fire Mueller, which led him to threaten to resign — was inaccurate in its claim that McGahn had functionally threatened to resign (which was clear in real time). 

On January 26, 2018, the President’s personal counsel called McGahn ‘s attorney and said that the President wanted McGahn to put out a statement denying that he had been asked to fire the Special Counsel and that he had threatened to quit in protest.784 McGahn’s attorney spoke with McGahn about that request and then called the President’s personal counsel to relay that McGahn would not make a statement.785 McGahn ‘s attorney informed the President’s personal counsel that the Times story was accurate in reporting that the President wanted the Special Counsel removed.786 Accordingly, McGahn’s attorney said, although the article was inaccurate in some other respects, McGahn could not comply with the President’s request to dispute the story.787

Put McGahn under oath, and Republicans will ask if he was a source for that story, and if he was, why he oversold what he did. At the very least they’ll beat him up for letting the “#FakeNews NYT” spread lies.

There are far better (tactically and Constitutionally) reasons to impeach

More troubling still, asserting that McGahn is the most important witness — and stating that he’d be a witness in “criminal obstruction” — you prioritize that cause for impeachment over others, causes that might elicit some Republican support or at the very least mobilize the Democratic base.

To my mind, the best cause for impeachment — in terms of cornering Republicans and mobilizing the Democratic base — pertains to Trump’s repurposing of otherwise allocated funding for his Wall. This was an issue about which Republicans themselves had problems. It highlights Trump’s impotence to deliver on his campaign promise that Mexico would pay for his wall. It goes to issues of efficacy on national security issues. And it highlights how Trump has abused authority — authority which goes to the core of separation of powers — to facilitate his attacks on Latino immigrants. Plus, depending on when impeachment was triggered, having focused on the power of the purse would provide a tool to rein Trump in if he survived the election.

Democrats should also focus on Trump’s abuse of the Vacancy Reform Act in his appointments to lead the Consumer Financial Protection Board, DOJ, DOD, and ODNI. Violating the spirit of Consumer Financial Protection Board gave Trump a way to gut an entity meant to protect consumers, something that Elizabeth Warren will be able to magnify better than anyone (all the more so if and when the economy starts to turn south). Appointing Big Dick Toilet Salesman Matt Whitaker to fire Jeff Sessions provides a different way to get to the Russian investigation, and may (if BDTS prevented Mueller from naming Trump in the Roger Stone indictment) focus more attention on the resolution of that case (which has the potential of being both a really damaging trial or a pre-trial pardon). The appointment of Patrick Shanahan as Acting Secretary of Defense provides a way to focus on ethics complaints about his tenure, to say nothing about Trump’s tolerance for familial abuse. And Trump must be held accountable for whatever predictable problems selecting a loyalist over Sue Gordon as Acting DNI will cause — and some of the predictable problems, which might involve North Korea, Iran, or cybersecurity, could be quite damning.

Another impeachment cause that would invoke some of the same issues as the Russian investigation, but in a way that would be more awkward for the President, is Trump’s abuse of security clearances, starting with, but not limited to, Kushner’s (this is an issue where the Oversight Committee has done great work). An inquiry into why Trump gave Kushner clearance would provide a way to get to Kushner’s awkward role in foreign policy, particularly the possibility that he shared US classified information with Gulf oligarchs. If Kushner is found to have shared intelligence allowing Mohammed bin Salman to target Al-Waleed bin Talal or Jamal Khashoggi, it will invoke a slew of issues that will put Republicans in an awkward position (and have the salutary effect of focusing attention on Trump’s refusal to keep the Saudis honest).

Democrats would be idiots if they didn’t make an issue of Trump’s self-dealing, including but not limited to emoluments. It’s likely Republicans would defend the President on this point, but if they do, it can form the basis for legislation to more clearly prohibit such self-dealing going forward if Democrats do well in 2020. In addition, it goes to an issue that was absolutely key to Trump’s supporters, #DrainTheSwamp, but on which he has been (predictably) an utter failure.

Finally, Democrats should include Trump’s refusal to respond to violations of the Presidential Records Act in any impeachment inquiry. It is true that most Administrations have had problems adhering to PRA going back to Poppy Bush (Obama is to a large extent an exception, but Hillary’s avoidance of the Federal Records Act undermines that good record). But when pressed, most prior Administrations have been forced to admit the details of their failures to fulfill the law. Here, Trump has simply refused to respond to all questions about PRA violations. Some of these violations involve key players in the Russian investigation: Jared, KT McFarland, and Bannon. But these same people were involved in other scandals, such as the willingness to sacrifice US standards on nuclear security so that a bunch of Republicans can make $1 million per reactor (again, this would incorporate great work done by OGR).

This is a non-exclusive list. The point is, however, that HJC should frame their impeachment inquiry broadly, partly because some of Trump’s high crimes and misdemeanors have pissed off Republicans in the past, and partly because a failed impeachment trial can still frame Republican obstruction in a way that voters will care about.

Obviously, I think Trump’s conduct during the Russian investigation is important, and it’s all packaged up with a bow. But it’s not even just obstruction. Trump lied under oath in his written responses to Mueller. And Trump cheated to win an election. So even while pursuing impeachment on Russia, it needs to be more broadly conceived than the issues that Don McGahn can address. 

Other witnesses have more to offer than Don McGahn

So even in the emphasis on the Russia investigation, I think there is at least one better witness: Jay Sekulow. Sekulow has done a number of things that don’t qualify for attorney client privilege, such as his conversations directly with Michael Cohen to write a false statement hiding the President’s ties to Russia. That goes directly to Trump’s sworn lies.

Then there’s John Kelly. He was at DHS for the beginning of Trump’s abusive immigration policies. He knows details of Trump’s security clearance abuses (and might actually give a damn about them). He should know details of the PRA violations (and if not, should be accountable for why not). And he knows details of Kushner’s privatized foreign policy (and probably tried to control it). Kelly was a minor witness for Robert Mueller, but should be a key witness to any impeachment inquiry.

Finally, there’s the role of the Office of Legal Counsel and its head Steve Engel in all this. Some of OLC’s opinions enabling Trump’s abusive acts have been every bit as dodgy as John Yoo’s ones. It is the place of DOJ’s oversight committee to review the circumstances of those shitty opinions. While the government would likely fight this testimony particularly aggressively based on deliberative and attorney-client privileges, both John Yoo and Steven Bradbury have testified before, Yoo on an issue (torture) pertaining to abuse. Engel would still be able to testify about patterns of communication and the degree to which Trump dictated outcomes.

I’ll grant you, there are good reasons why McGahn may be a good tactical witness. I suspect that, by the time he testified, McGahn might be prepared to Bigfoot his testimony, not least in an attempt to cleanse himself of the Trump taint. So at that level, he may be a willing, damning witness.

So calling McGahn the most important witness might just be a legal tactic, a means to tie HJC’s obstruction inquiry with witnesses who have been blocked from testifying. And the White House Counsel position (to say nothing of the former White House Counsel position) is one for which there is precedent (under Clinton and Bush) for coerced testimony.

But I hope to hell HJC doesn’t really believe he’s the most important witness.