US. Department of Justice

 

Of?ce of Legal Counsel

 

Of?ce of the Assistant Attorney General Washington, D. C. 20530

October 25, 2019

Hon. Michael K. Atkinson
Inspector General of the Intelligence Community
Washington, DC. 2051 1

Hon. Michael E. Horowitz
Chairperson of the Council of the Inspectors General on Integrity and Ef?ciency

Inspector General of the Department of Justice
Washington, DC. 20006

Hon. Allison C. Lerner 
Vice Chairperson of the Council of the Inspectors General on Integrity and Ef?ciency
Inspector General of the National Science Foundation

Washington, DC. 20006

Dear Inspectors General Atkinson, Horowitz, and Lerner:

I write in response to the September 17, 2019 letter from the Inspector General of the
Intelligence Community concerning this Of?ce?s recent opinion interpreting the
meaning of ?urgent concern? under 50 U.S.C. I also respond to the October 22,
2019 letter from the Council of the Inspectors General on Integrity and Ef?ciency 
supporting the letter. We appreciated the opportunity to consult with the ICIG, as well as
with the General Counsel of the Of?ce of the Director of National Intelligence, in the course of
preparing our opinion. We also respect the important role that CIGIE and its members play
within the Executive Branch. While your letters raise policy concerns about the importance of
whistleblowers within the intelligence community, this Of?ce is not an actor on the policy stage.
It is for Congress to balance the relevant policies, consistent with the constitutional separation of
powers. In providing authoritative legal advice within the Executive Branch, 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 declassi?ed and made public.

While we appreciate that you may disagree with our conclusions about the ?urgent
concern? provision, your letters re?ect certain misconceptions about the opinion, which we
address below. Our opinion did not interpret any of the statutory provisions protecting
whistleblowers from retaliation, and nothing in our opinion alters the protections that Congress
has provided. What our opinion did conclude was that a complaint alleging that President Trump
engaged in misconduct during a diplomatic communication with the Ukrainian president did not
relate to ?the funding, administration, or operation of an intelligence activity? under the authority
of the Director of National Intelligence 50 U.S.C. But that

 

See ?Urgent Concern ?Determination by the Inspector General of the Intelligence Community, 43 Op.
O.L.C. (Sept. 3, 2019) (?Opinion?), 120571 l/download.

conclusion follows from the plain language of the statute. Simply put: The President is not part
of the intelligence community as Congress de?ned it, see id. 3003(4), and his communication
with a foreign leader did not relate to any ?intelligence activity? under the authority. To
the contrary, the information in the complaint appears to have been derived from the
complainant?s conversations with White House of?cials and from press accounts, not from any
intelligence community operation.

In his September 17 letter, the ICIG contends that the complainant?s allegations ?fall
squarely within the jurisdiction of the? DNI, because ?one of the most signi?cant
responsibilities is securing our Nation?s elections by leading the Intelligence Community?s
efforts to collect, analyze, and disseminate information? concerning foreign election interference.
Letter for Steven Engel, Assistant Attorney General, Of?ce of Legal Counsel, from Michael K.
Atkinson, Inspector General of the Intelligence Community at 3?4 (Sept. 17, 2019) 
Letter?). We do not question that the DNI may have an interest in this subj ect?matter, but the
?urgent concern? provision does not turn upon such an interest. Instead, Congress provided that
the concern must relate to ?the funding, administration, or operation of an intelligence activity?
within the authority. 50 U.S.C. 

As our opinion explained, there is a material distinction between the supervision of
intelligence activities directed against foreign threats, including foreign interference in our
elections, and the statutory reporting requirement for complaints relating to ?the funding,
administration, or operation of an intelligence activity.? See Opinion at 6?8. We did not
conclude that the DNI ?is prohibited from reviewing the cause of any . . . alleged interference? in
US. elections. Letter for Steven A. Engel, Assistant Attorney General, Of?ce of Legal Counsel,
from Michael E. Horowitz, Chairperson of CIGIE and Inspector General of the Department of
Justice, and Allison C. Lerner, Vice Chairperson of CIGIE and Inspector General of the National
Science Foundation at 1??2 (Oct. 22, 2019) Letter?). To the contrary, we recognized
that the DNI ?surely has responsibility to coordinate the activities of the intelligence community?
in collecting foreign intelligence, and we assumed that he had ?general oversight responsibility
for preventing foreign election interference.? Opinion at 7 n.7.

The authority to address foreign election interference, however, does not mean that
every report involving a foreign threat would present an ?urgent concern? under the statute. The
complaint must relate to ?the funding, administration, or operation of an intelligence activity.?
50 U.S.C. 3033(k)(5)(G)(i) (emphases added). The statute thus tracks the jurisdiction of the
ICIG, which extends, not to every global intelligence threat, but to the activities of those within
the intelligence community. See id. 3033(b) (providing that the ICIG may investigate
?programs and activities within the responsibility and authority of the? DNI (emphasis added)).
As we explained, ?the responsibility is to watch the watchers in the performance of their
duties, not to investigate and review matters relating to the foreign intelligence threats
themselves.? Opinion at 10. Accordingly, it would be a mistake to equate the ?broad
legal mandate to address intelligence matters related to national security? with the statutory
reporting requirement for complaints arising from within the intelligence community. CIGIE
Letter at 1.

We do not take issue with suggestion that an inspector general?s investigative
authority may sometimes overlap with the authority of others in the agency or with the authority
of another department or agency. See CIGIE Letter at 2 n.3. Indeed, our opinion identi?ed

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examples of such overlap. See Opinion at 11. But the courts of appeals have also recognized
that an inspector general?s jurisdiction is not coextensive with the agency?s operational authority.
See, e. Truckers United for Safety v. Mead, 251 F.3d 183, 189?90 (DC. Cir. 2001); Burlington
N. RR. Co. v. O?ce of Inspector General, 983 F.2d 631, 642?43 (5th Cir. 1993). As applied to
this complaint, we believe it clear that the complainant?s concern with the President?s
communication with a foreign leader did not relate to ?the funding, administration, or operation
of an intelligence activity? under the supervision.

In viewing the complaint as presenting an ?urgent concern,? CIGIE suggests that the
ICIG may have overlooked an alternative basis for such a conclusion. According to CIGIE,
?allegation[s] that certain of?cials may have misused an intelligence system also raises an
additional claim of a serious or ?agrant problem that relates to the operations of the 
CIGIE Letter at 2. As we explained in our opinion, however, ?the ICIG did not discuss this
allegation in concluding that the complaint stated an urgent concern.? Opinion at 5 n4. The
statute contemplates that, upon receipt of a complaint, the ICIG would investigate and determine
whether it ?appears credible.? 50 U.S.C. 3033(k)(5)(B). Because the letter did not
discuss that particular allegation or determine that it was credible, we did not address it either.

While our opinion drew no conclusions about that particular allegation, we do not believe
that the ICIG would have avoided analyzing the matter if it presented a ?serious or ?agrant
problem? relating to the operation of an intelligence activity within the jurisdiction of the DN1.
Id. The complainant expressed concern that White House lawyers restricted
access to the transcript of the President?s call by placing it on a ?standalone computer system
reserved for codeword-level intelligence information? and suggested that unidenti?ed ?White
House of?cials? regarded such treatment as an ?abuse of the system.? Neither the complainant
(nor the ICIG) identi?ed any statute, order, or policy that would bar such a use of the system,
and we are not aware of one.

It is likewise unclear why CIGIE assumes that the alleged actions by White House
lawyers would have involved the operation of an intelligence activity under the authority.
According to CIGIE, ?the DN1 has jurisdiction over the handling of classi?ed and other sensitive
information? and this allegation suggests ?the misuse of federal intelligence systems within the
oversight of the CIGIE Letter at 2 n.2. But CIGIE does not identify the basis for the
jurisdiction, and the Acting DNI recently testi?ed to the contrary. During his September
26 appearance before the House Permanent Select Committee on Intelligence, the Acting DNI
repeatedly testi?ed that this ancillary allegation would not involve matters under his supervision.
He told Chairman Schiff that he had ?no idea? what White House lawyers ?did with the
transcripts, where they put them,? and that ?it is not something that would be under [his]
authority or responsibility.? When asked whether it would involve the DNl?s responsibilities ?if
a transcript with a foreign leader is improperly moved into an intelligence community
classi?cation system,? the Acting DNI said, ?it is not underneath my authority and
responsibility.? And he further testi?ed that ?how the White House, . . . the Executive Of?ce of
the President, and the National Security Council conduct their business is their business.? Thus,
the DN1 does not share ClGlE?s View that the facts as alleged would readily relate to the
operation of an intelligence activity under the DNl?s supervision.

CIGIE also expresses concern with our conclusion that, when a complaint does not
present an ?urgent concern,? then the DN1 need not forward it to the intelligence committees.

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According to CIGIE, the statute ?speci?cally entrusted to the the determination as to
whether a complaint statutes an ?urgent concern.? CIGIE Letter at 4. That, howeverwritten. The statute contains a freestanding de?nition of ?urgent concern,? 50 U.S.C.
3033(k)(5)(G), and it provides that a complainant ?may? report such an ?urgent concern? to the
ICIG. Id 3033(k)(5)(A). The ICIG shall then ?determine whether the complaint or
information appears credible.? Id. 3033(k)(5)(B). If the complaint appears credible, then the
ICIG ?shall transmit to the a notice of that determination,? and the DN1 ?shall, within 7
calendar days of such receipt, forward such transmittal to the congressional intelligence
committees.? Id. (emphases added).

What the statute speci?cally entrusts to the ICIG is the determination as to whether ?the
complaint or information appears credible.? Id. 3033(k)(5)(B). But the statute does not
expressly vest either the ICIG or the DN1 with discretion to make a controlling ?determination?
about whether a complaint meets the statute?s de?nition of an ?urgent concern.? We believe it
evident that every of?cer charged with duties under a federal statute must con?rm that the words
of the statute apply. As our opinion recognized, the applicability of each step of the procedures
required by section 3033(k)(5) depends on whether there is ?a sound jurisdictional foundation.?
Opinion at 7. If the ICIG receives a complaint that does not present an ?urgent concern? (even if
the allegations ?appear credible?), then the procedures are inapplicable; they do not require
further action by the ICIG. And likewise, if the DN1 ?receives a transmittal that does not present
an urgent concern,? as in this case, then the statute does not require the DN1 to forward a non-
urgent-concern complaint to the intelligence committees. Id.

We do not believe that there is any con?ict or tension between the authority to
interpret the laws he is charged with administering (including section 3033(k)(5)) and the
statutory mission of the ICIG. The ICIG exercises his statutory authority under the general
supervision of the DN1, see 50 U.S.C. 3033(c)(3), and when it comes to congressional
noti?cation, the statute provides the ICIG with authority to share concerns with the intelligence
committees, including by informing the committees of ?any differences with the 1] affecting
the execution of the duties or responsibilities of the Inspector General,? id. 3033(k)(3)(A). In
connection with this very matter, the ICIG advised the intelligence committees of his
disagreement with the Acting DNI. The Acting DNI, in consultation with this Of?ce, supported
the providing such a noti?cation, and that noti?cation began an accommodation process
with Congress that led directly to the President?s decision to release the lClG?s letter, the
underlying complaint, and the transcript itself.

Finally, we are con?dent that our opinion does not diminish the statutory protections that
Congress has provided to federal employees and contractors who make good-faith disclosures to
inspectors general. See ICIG Letter at 7?8; CIGIE Letter at 2?4. Our opinion did not address the
scope of any provision prohibiting retaliation against whistleblowers. The ICIG expresses 
concern that our interpretation of the ?urgent concern? statute may bear upon 50 U.S.C.
3033(g)(3)(B), which protects whistleblowers who make misconduct complaints ?concerning
the existence of an activity within the authorities and responsibilities of the? DN1, id.
3033(g)(3). But whatever the scope of that provision (which is not identical to the urgent?
concern statute), other statutes may protect whistleblowers who make good-faith disclosures
even for matters falling outside the jurisdiction.

For instance, an intelligence?community employee is protected against any reprisal ?for a
lawful disclosure of information by the employee to . . . the Inspector General of the Intelligence
Community, . . . which the employee reasonably believes evidences . . . a violation of any
Federal law, rule, or regulation; or . . . mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and speci?c danger to public health or safety.? 50 U.S.C. 3234(b).
This statute codi?ed the protections of Presidential Policy Directive 19, as implemented in
Intelligence Community Directive 120, which similarly protects an intelligence?community
employee against retaliation for disclosures reasonably believed to evidence misconduct.
Moreover, section 7(0) of the Inspector General Act of 1978, 5 U.S.C. app, protects an employee
from retaliation ?for making a complaint or disclosing information to an Inspector General,
unless the complaint was made or the information disclosed with the knowledge that it was false
or with willful disregard for its truth or falsity.? These protections extend beyond those matters
that are within the authority of the DN1. The scope of the urgent-concern statute, as interpreted
by our opinion, in no way diminishes the robust protections that these employees would enjoy
under these more general provisions.

We appreciate receiving your views on these matters. We hope that this response
addresses your concerns about matters that our opinion did not address. Please do not hesitate to
contact me should you have any further questions.

Steven A. Engel
Assistant Attorney General

cc: Hon. Joseph Maguire
Acting Director of National Intelligence