The Justice Department is back in the center of a political maelstrom.
Questions surrounding the handling of a whistleblower’s allegations about President Donald Trump have the department and Attorney General William Barr again on the defensive, explaining their process and addressing sensitive political investigations.
This time among the questions for Barr and the Justice Department: why the department’s preliminary investigation of a whistleblower complaint was narrowly focused only on potential campaign finance violations when the complaint raised concerns about broader potential legal violations.
Democrats, still unhappy with how Barr stage-managed the release of special counsel Robert Mueller’s report earlier this year, are aiming at the attorney general as they begin impeachment proceedings.
Barr “has gone rogue,” House Speaker Nancy Pelosi said Friday.
“Since (Barr) was mentioned in all of this,” Pelosi said, referring to Trump’s mention of his attorney general on the July 25 call with Ukraine President Volodymyr Zelensky “It’s curious that he would be making decisions about how the complaint would be handled.”
The Justice Department fired back.
“If by ‘going rogue’ Speaker Pelosi means that the Department of Justice follows the law and long-established procedures, she is correct,” Justice spokeswoman Kerri Kupec said.
Both the timing and scope of the Justice Department’s investigation, as well as who else was notified, are under scrutiny.
A new timeline emerged Friday from administration officials over how the whistleblower’s concerns became known.
In late July, the whistleblower first anonymously raised concerns about the President’s call with a senior lawyer for the intelligence agency where the whistleblower worked, according to two people briefed on the matter. The intelligence agency lawyer reached out to John Eisenberg, a White House deputy counsel for national security in the following days to ask about the call, one of the people briefed said.
The whistleblower made a formal complaint on August 12 to the Intelligence Agencies Inspector General, a separate process from the earlier informal notification to the employee’s home agency.
The Justice Department’s national security lawyers were first alerted to the whistleblower’s concerns over the Trump call on August 14, more than a week before the inspector general formally referred the complaint to the department as a possible criminal matter, officials told CNN. That notification occurred during a weekly call that included John Demers, the Justice Department’s top national security lawyer, Eisenberg and the senior lawyer for the intelligence agency.
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.
What happens over the next 12 days is still murky. Justice officials and the intelligence agency discussed whether the agency was making criminal referral for the Justice Department to investigate. Justice officials said it wasn’t entirely clear that the agency was making a referral. Internally, at the Justice Department officials also discussed what to do with the concerns being raised.
It would be more than a week before the inspector general for the intelligence community officially referred the matter to the Justice Department, following up on the formal whistleblower complaint.
From there, the Justice Department looked at the accusations narrowly – focusing almost entirely on whether the President broke a campaign finance law barring foreign contributions in American elections.
The narrow approach and decision to close the probe in three weeks without much investigative follow-up makes the matter much more like the department’s handling of an everyday inquiry rather than one with a top political figure or the President at its center.
It also contrasts with the way the department and the FBI handled a 2015 referral from the same inspector general’s office related to Hillary Clinton’s handling of classified material in her private email server.
The whistleblower’s letter alleges Trump abused his official powers “to solicit interference” from Zelensky in the upcoming 2020 election, and the White House took steps to cover it up. A reconstructed rough transcript of a July phone conversation released by the White House on Wednesday shows Trump repeatedly pushed Zelensky to investigate former Vice President Joe Biden and his son, Hunter. There is no evidence of wrongdoing by either Joe or Hunter Biden.
Scope of investigation
The intelligence community inspector general pointed to the possibility of a campaign finance crime, citing criminal law in his letter to the Justice Department. But he also raised an array of other potential wrongdoing and national security concerns from the whistleblower’s allegations.
The whistleblower complaint described a possible counterintelligence risk from foreign intelligence agencies that may be aware of the conduct, and how White House officials moved the transcript into a highly classified system.
The whistleblower alleged that White House officials attempted to “lock down” the call transcript out of political concern.
The inspector general also noted that the whistleblower raised questions about a larger effort to pressure Ukrainian leadership, including by suspending US aid to the country or restrict Zelensky’s access to Trump, sometimes allegedly using Trump’s personal lawyer Rudy Giuliani as a conduit in ways that may have split from the official US approach.
Senior Justice Department officials on Wednesday said department prosecutors didn’t look at military funding as part of their probe, and declined to comment on other incidents they may have looked, citing classification issues.
“The Inspector General’s letter cited a conversation between the President and Ukrainian President Zelensky as a potential violation of federal campaign finance law,” Kupec, the Justice Department spokeswoman, said in a statement Wednesday.
Similarly, the FBI, which received a separate referral from the intelligence inspector general, didn’t open an investigation. Following guidelines for campaign finance violations, the FBI consulted with public corruption prosecutors at the Justice Department and deferred to the Justice criminal division, senior Justice officials said. The FBI didn’t respond to questions Friday about its handling of the complaint.
Former intelligence community officials raised concerns Thursday that the department had not done enough.
“I would have thought that the department had looked at all possibility of criminal liability before determining there was nothing to investigate here,” said Robert Litt, a former general counsel of the Office of the Director of National Intelligence, on Thursday.
Mary McCord, a senior national security official in the Obama Justice Department, said she believed that there were “many investigative steps to take” based off of the criminal referral.
Even in the summary of the Trump-Zelensky call the White House provided Wednesday, “There are indications potentially of multiple offenses there. I find it really hard to believe that (DOJ prosecutors) thought it was not worth doing further investigation,” McCord said.
Contrast with handling of other Clinton, Russia information
Just four years ago, the intelligence community watchdog and federal investigators faced a similar set of explosive allegations aimed at a political leader. That case regarding the former secretary of state and presumptive Democratic presidential nominee Hillary Clinton took a vastly different turn.
And in the early days of the Russia probe, federal investigators looked at possible criminal violations and also opened a counterintelligence probe into whether US officials, including Trump, could be exploited by the Russians. That eventually led to special counsel Robert Mueller’s investigation into whether Trump obstructed justice and how the Russians attempted to interfere in the election. Mueller, after closing his investigation, didn’t put counter-intelligence conclusions in writing but instead set up a process to pass counterintelligence information to the FBI, he told Congress in July.
In the Trump-Zelensky whistleblower situation, the FBI passed its criminal referral to the Justice Department’s public integrity unit, which officials say is required by Justice Department guidelines for alleged election corruption.
In the Clinton probe that began in 2015, the intelligence community inspector general, Charles McCollough, hadn’t pinned questions about Clinton to any particular alleged crime. Rather, it advised the FBI that classified information may have been disclosed in an unauthorized manner to a foreign power.
Four days after receiving the referral, the FBI opened a criminal investigation predicated “on the possible compromise” of highly sensitive information in Clinton’s personal email server, according to a 2018 report by the Justice Department’s inspector general.
Mueller, for his part, had examined and ultimately charged American defendants with crimes ranging from financial fraud to lying to investigators. He had additionally looked at several more potentially violations by Trump advisers, including in campaign finance law and conspiracy with the Russians, but did not bring those charges.