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Watchdogs inside government blast DOJ for not referring Ukraine whistleblower to Congress

The watchdogs say the Office of Legal Counsel's decision not to forward the complaint to Congress could "undermine the critical role whistleblowers play."
Image: President Donald Trump Departs White House For Shale Conference In Pittsburgh
President Donald Trump.Mark Wilson / Getty Images

WASHINGTON — Dozens of inspectors general across the federal government have signed a letter repudiating the Justice Department's legal opinion that the original complaint by a CIA whistleblower about President Donald Trump's conversation with Ukraine's president did not have to be turned over to Congress.

In a strongly worded statement written by the inspector general of the Justice Department, the inspectors general portrayed the opinion by the DOJ's Office of Legal Counsel as dangerously wrong and severely damaging to whistleblower protections.

"The OLC opinion, if not withdrawn or modified, could seriously undermine the critical role whistleblowers play in coming forward to report waste, fraud, abuse, and misconduct across the federal government," the independent watchdogs said.

Click here to read the letter

The OLC responded to the inspectors general on Friday afternoon with a letter that reiterated its opinion that because the president is not a part of the intelligence community, the matter was not of “urgent concern” to be shared with the intelligence committees.

"In providing authoritative legal advice within the Executive Branch," said the OLC's response, "our sole responsibility is to faithfully interpret the statutes as Congress has written them. We did precisely that in our recent opinion, which has been declassified and made public."

Click here to read the OLC's response

The Justice Department did not immediately respond to a request for comment.

The head of the OLC, Steven Engel, is a political appointee hired in November 2017.

At issue is a Sept. 24 OLC opinion written in response to the whistleblower's then-secret complaint to the Inspector General of the Intelligence Community.

Michael Atkinson, the inspector general of the intelligence community, had deemed the complaint an "urgent concern" under the law, meaning it should be turned over to the congressional intelligence committees.

But because the complaint involved the president, the director of national intelligence, Joseph Maguire, consulted with the White House and the Justice Department.

Ultimately, the complaint was turned over and made public, as was the transcript of Tump's July phone call with President Volodymyr Zelenskiy of Ukraine. It is all now part of an unfolding impeachment investigation into whether Trump abused his power to try to extract a political favor from a foreign government.

But initially, the Trump administration tried to keep the complaint secret. Justice Department lawyers at the OLC ruled that the complaint did not fit the definition of an urgent concern because it alleged misconduct by a person (the president) who is not a member of the intelligence community, and because the alleged misconduct didn't specifically involve intelligence activities. Therefore, they ruled, Congress had no right to see it.

The inspectors general wrote in their letter that this analysis was wrong on several points.

First, they said that since the complaint accused the president of soliciting foreign election interference, it was within the intelligence community's jurisdiction because "the DNI has a broad legal mandate to address intelligence matters related to national security, as well as the specific responsibility to assess instances of possible foreign interference in United States elections and identify, to the maximum extent possible, the methods used and persons and foreign governments involved in the interference."

The letter added, "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."

Second, because the whistleblower alleged that the transcript of the president's call with Ukraine was placed on a highly classified system to protect it from disclosure, that "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."

Lastly, the IGs concluded that the Justice Department was wrong on the law in arguing that it could overrule the inspector general and withhold the document from Congress.

The Justice Department "substituted its judgment" in an opinion that "undermines the independence" of the inspector general, the letter says.

"Perhaps most concerning to the IG community, we believe that the OLC opinion creates uncertainty for federal employees and contractors across government about the scope of whistleblower protections, thereby chilling whistleblower disclosures," the inspectors general wrote.

Legal experts viewed the letter as a significant development.

"I don't think I've ever seen a letter like this, and I've been doing this for a while," tweeted Danielle Brian, who directs the Project on Government Oversight, a watchdog group that focuses on government wrongdoing. "Pay attention: these are our Inspectors General doing their job well and warning us of wrongdoing."

Steve Vladeck, a professor at the University of Texas School of Law, tweeted, "It [has] been clear since as soon as we saw the original OLC opinion on the whistleblower complaint that DOJ's analysis was designed to reach a foreordained result — and not a neutral assessment of the ICIG's analysis. But kudos to the IGs for publicly pushing back in this letter."