JimBowie1958
Old Fogey
- Sep 25, 2011
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The Office of Legal Counsel in DoJ explains why the Rumorblower allegation of what happened in the Ukrainian phone call was not a crime and not of 'urgent concern'.
https://www.justice.gov/olc/opinion/file/1205711/download
The complainant describes a hearsay report that the President, who is not a member of the intelligence community, abused his authority or acted unlawfully in connection with foreign diplomacy. In the ICIG’s view, those allegations fall within the urgent-concern provision because the DNI has operational responsibility to prevent election interference.7 But even
if so, it does not follow that the alleged misconduct by the President concerns “the funding, administration, or operation of an intelligence activity within the responsibility and authority” of the DNI because the allegations do not arise in connection with any such intelligence activity at all. 50 U.S.C. § 3033(k)(5)(G)(i). The complaint therefore does not state an “urgent concern.”We begin with the words of the statute. Section 3033(k)(5)(G) does not expressly define “intelligence activity,” but the meaning of the phrase seems clear from context.
...
In this case, the conduct that is the subject of the complaint does not relate to an “intelligence activity” under the DNI’s supervision. The complainant alleges that the President made an inappropriate or potential-ly unlawful request on a routine diplomatic call with the Ukrainian presi-dent. But the President is not a member of the intelligence community, see id. § 3003(4), and his communication with a foreign leader involved no intelligence operation or other activity aimed at collecting or analyzing foreign intelligence. To the extent that the complaint warrants further review, that review falls outside section 3033(k)(5), which does not charge the ICIG (let alone every intelligence-community employee) with reporting on every serious allegation that may be found in a classified document. To the contrary, where the ICIG learns of a credible allegation of a potential criminal matter outside the intelligence community, the ICIG should refer the matter to the Department of Justice, consistent with 28 U.S.C. § 535.We recognize that conduct by individuals outside of the intelligence community, or outside the government, can sometimes relate to “the funding, administration, or operation of an intelligence activity.” 50 U.S.C. § 3033(k)(5)(G)(i). For instance, if an alleged violation of law involves a non-agency party who conspired with a member of the intelli-gence community or who perpetrated a fraud on an agency within the DNI’s authority, that may well relate to “the funding, administration, or operation of an intelligence activity” because it would directly impact the operations or funding of the agency or its personnel. In 1990, then-Acting Deputy Attorney General William Barr acknowledged similar instances in which inspectors general could investigate “external parties.” Letter for William M. Diefenderfer, Deputy Director, Office of Manage-ment and Budget, from William P. Barr, Acting Deputy Attorney General, at 2–3 (July 17, 1990). None of those circumstances, however, is present here. The alleged conduct at issue concerns actions by the President arising out of confidential diplomatic communications with the Ukrainian president. Such matters simply do not relate to “the funding, administra-tion, or operation of an intelligence activity within the responsibility and authority” of the DNI. 50 U.S.C. § 3033(k)(5)(G)(i). ...
For the reasons set forth above, we conclude that the complaint submit-ted to the ICIG does not involve an “urgent concern” as defined in 50 U.S.C. § 3033(k)(5)(G). As a result, the statute does not require that the DNI transmit the complaint to the intelligence committees. Consistent with 28 U.S.C. § 535, however, the ICIG’s letter and the attached com-plaint have been referred to the Criminal Division of the Department of Justice for appropriate review
https://www.justice.gov/olc/opinion/file/1205711/download
The complainant describes a hearsay report that the President, who is not a member of the intelligence community, abused his authority or acted unlawfully in connection with foreign diplomacy. In the ICIG’s view, those allegations fall within the urgent-concern provision because the DNI has operational responsibility to prevent election interference.7 But even
if so, it does not follow that the alleged misconduct by the President concerns “the funding, administration, or operation of an intelligence activity within the responsibility and authority” of the DNI because the allegations do not arise in connection with any such intelligence activity at all. 50 U.S.C. § 3033(k)(5)(G)(i). The complaint therefore does not state an “urgent concern.”We begin with the words of the statute. Section 3033(k)(5)(G) does not expressly define “intelligence activity,” but the meaning of the phrase seems clear from context.
...
In this case, the conduct that is the subject of the complaint does not relate to an “intelligence activity” under the DNI’s supervision. The complainant alleges that the President made an inappropriate or potential-ly unlawful request on a routine diplomatic call with the Ukrainian presi-dent. But the President is not a member of the intelligence community, see id. § 3003(4), and his communication with a foreign leader involved no intelligence operation or other activity aimed at collecting or analyzing foreign intelligence. To the extent that the complaint warrants further review, that review falls outside section 3033(k)(5), which does not charge the ICIG (let alone every intelligence-community employee) with reporting on every serious allegation that may be found in a classified document. To the contrary, where the ICIG learns of a credible allegation of a potential criminal matter outside the intelligence community, the ICIG should refer the matter to the Department of Justice, consistent with 28 U.S.C. § 535.We recognize that conduct by individuals outside of the intelligence community, or outside the government, can sometimes relate to “the funding, administration, or operation of an intelligence activity.” 50 U.S.C. § 3033(k)(5)(G)(i). For instance, if an alleged violation of law involves a non-agency party who conspired with a member of the intelli-gence community or who perpetrated a fraud on an agency within the DNI’s authority, that may well relate to “the funding, administration, or operation of an intelligence activity” because it would directly impact the operations or funding of the agency or its personnel. In 1990, then-Acting Deputy Attorney General William Barr acknowledged similar instances in which inspectors general could investigate “external parties.” Letter for William M. Diefenderfer, Deputy Director, Office of Manage-ment and Budget, from William P. Barr, Acting Deputy Attorney General, at 2–3 (July 17, 1990). None of those circumstances, however, is present here. The alleged conduct at issue concerns actions by the President arising out of confidential diplomatic communications with the Ukrainian president. Such matters simply do not relate to “the funding, administra-tion, or operation of an intelligence activity within the responsibility and authority” of the DNI. 50 U.S.C. § 3033(k)(5)(G)(i). ...
For the reasons set forth above, we conclude that the complaint submit-ted to the ICIG does not involve an “urgent concern” as defined in 50 U.S.C. § 3033(k)(5)(G). As a result, the statute does not require that the DNI transmit the complaint to the intelligence committees. Consistent with 28 U.S.C. § 535, however, the ICIG’s letter and the attached com-plaint have been referred to the Criminal Division of the Department of Justice for appropriate review
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