OPINION — Intelligence Community Inspector General Michael Atkinson deserves praise along with the Whistleblower for pushing within the law to get President Trump’s highly protected phone call with Ukrainian President Volodymyr Zelensky before the Congress and the public.
Atkinson’s two week “preliminary review” helped build credibility for the Whistleblower’s August 12 complaint, and his later disagreement with superiors about sharing details with Congress eventually led to the release of not only the White House memo of the Trump/Zelensky conversation, but also of the complaint itself.
The Whistleblower’s complaint, information collected by Atkinson’s preliminary review, and his appearance in closed session Friday before the House Intelligence Committee should offer a firm foundation for the impeachment inquiry now getting started.
Atkinson has apparently interviewed the Whistleblower directly or through his attorneys, according to Atkinson’s August 26, declassified letter of findings sent to Acting Director of National Intelligence Joseph Maguire.
“The Complainant’s identity is known to me,” Atkinson wrote in that letter, and later added personal information such as “the Complainant has official and authorized access to the information and sources referenced in the Complainant’s Letter and Classified Appendix, and that the Complainant has subject matter expertise related to much of the material information provided in the Complainant’s Letter and Classified Appendix.”
That information supports the notion that the Whistleblower has a level of expertise in that which they wrote about in the complaint including expertise on Russia, Eastern Europe and the intricacies of Ukrainian politics.
In addition, Atkinson’s preliminary review found “some indicia of an arguable political bias on the part of the Complainant in favor of a rival political candidate,” which is said to be a campaign contribution to a Democratic candidate. But Atkinson went on, “Such evidence did not change my determination that the complaint relating to the urgent concern appears credible, particularly given the other information the ICIG obtained during its preliminary review.”
Although some of the facts that Atkinson and his investigators obtained during his inquiry were not contained in the letter sent to Acting DNI Maguire, Atkinson wrote that information “obtained during the preliminary review…supports the Complainant’s allegation that, among other things, during the call, the President sought to pressure the Ukrainian leader to take actions to help the President‘s 2020 reelection bid.”
Atkinson, like the Whistleblower, has been meticulous in playing his role within the Whistleblower Protection Act and within the rules that were created when it was implemented. A career, non-partisan, Justice Department prosecutor, in the past he handled successful prosecutions of public and elected officials. Those included that of former Rep. William Jefferson (D-La.) on corruption and racketeering charges for which Obama Attorney General Eric Holder awarded Atkinson a Justice Department distinguished service award.
Since the whistleblower law gave him only 14 days for his preliminary inquiry, Atkinson did not attempt to negotiate with the White House to read or obtain records of the July 25 telephone call between President Trump and President Zelensky. But his preliminary review confirmed what the Whistleblower alleged in his complaint, some details of the call. It also found credible the Whistleblower’s allegation that there had been a “‘lock down’ of all records of the [Trump/Zelensky] phone call, especially the official word-for-word transcript of the call” in “a separate electronic system that is otherwise used to store and handle classified information of an especially sensitive nature.”
Atkinson wrote to Maguire that “the National Security Council had already implemented special handling procedures to preserve all records of the telephone call.”
Atkinson apparently believed there could, or at least should, be further investigation of Trump’s phone call. He told Maguire he had sent that day “a notice of a document access request and a document hold notice to the White House Counsel to request access to and the preservation of any and all records related to the President’s telephone call with the Ukrainian President on July 25, 2019, and alleged related efforts to solicit, obtain, or receive assistance from foreign nationals in Ukraine, directly or indirectly, in connection with a Federal election.”
Atkinson also outlined to Maguire his belief that Trump’s phone call potentially violated several U.S. statutes and regulations. The one given most publicity was an election law he said “prohibits a foreign national, directly or indirectly, from making a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election.”
He also mentioned laws and regulations which “prohibit a person from soliciting, accepting, or receiving such a contribution or donation from a foreign national, directly or indirectly, in connection with a Federal, State, or local election.”
Less publicized has been Atkinson’s own judgment, stated in his letter to Maguire, that Trump’s phone call constituted “alleged conduct by a senior U.S. public official to seek foreign assistance to interfere in or influence a Federal election” which could “potentially expose such a U.S. public official (or others acting in concert with the U.S. public official) to serious national security and counterintelligence risks with respect to foreign intelligence services aware of such alleged conduct.”
In short, a foreign intelligence service with knowledge of Trump’s requested “favor” from Zelensky, should it remain secret, could use that information to blackmail the U.S. president.
In addition, Atkinson said it was his view that the Director of National Intelligence (DNI) has “responsibility and authority pursuant to federal law and Executive Orders to administer and operate programs and activities related to potential foreign interference in a United States election.”
This latter view was in direct opposition to a September 3, Justice Department Office of Legal (OLC) Opinion which found, “The complaint does not arise in connection with the operation of any U.S. government activity, and the alleged misconduct does not involve any member of the intelligence community.” That narrow reading of the statute led the Justice Department to send Atkinson’s letter and the complaint to Justice’s Criminal Division for “appropriate review,” and “does not require that the DNI transmit the complaint to the intelligence committees,” according to the OLC letter.
However, no FBI investigation was undertaken based on the complaint and Atkinson’s findings. On September 23, Justice Department spokesperson Kerri Kupec told The Washington Post that the head of the Justice Department’s criminal division determined that “there was no campaign finance violation and that no further action was warranted.”
Two other determinations in the OLC opinion are worth reporting, since if they survive, will sharply narrow the ICIG’s areas of investigation.
“Although the DNI and the intelligence community collect intelligence against foreign threats,” the OLC opinion said, “the ICIG's responsibility is to watch the watchers in the performance of their duties [intelligence community personnel], not to investigate and review matters relating to the foreign intelligence threats themselves.”
Another section of the OLC opinion appears to limit the ICIG to informing congressional intelligence committees when an investigation "focuses on any current or former intelligence community official who holds certain high-ranking positions…or when a matter requires a report to the Department of Justice of "possible criminal conduct by [such] a current or former [intelligence-community] official.''
It added, certainly related to the current situation, “The ICIG's reporting responsibilities [to Congress], however, do not concern officials outside the intelligence community, let alone the President.”
On September 9, Atkinson wrote the chairmen and ranking members of the House and Senate Intelligence Committees that Acting DNI Maguire, reacting to the Justice Department opinion, had decided not to transmit to them the complaint along with the ICIG’s determination it was of “a credible urgent concern.” Atkinson added he believed “that the Acting DNI is acting in good faith.”
Atkinson assured the legislators he would continue to seek to get the Whistleblower’s complaint to them “in an authorized and protected manner, and in accordance with appropriate security practices.”
On September 17, in another letter to the House and Senate Intelligence Committee leadership, Atkinson disclosed his disagreement with the Justice Department’s opinion that blocked his informing Congress of “the general subject matter of the Complainant’s allegations.” He also raised the problem of security for the Whistleblower.
DNI Maguire had given his personal assurance that the Whistleblower would be protected. However, Atkinson explained that since the Justice Department opinion said the complaint was not covered by the law, Maguire’s “personal assurance is not the legally enforceable statutory protection” for the Whistleblower from reprisal or the threat of reprisal.
Atkinson also said he had sent the Justice Department his reasons for disagreeing with the OLC opinion, adding that he believed alerting the congressional committees to the allegations related to the Trump/Zelensky conversation “not only falls within the DNI’s jurisdiction, but relates to one of the most significant and important of the DNI’s responsibilities to the American people.”
Whatever happened among DNI Maguire, the White House and the Justice Department that led to the release on September 25 of the summary of the Trump/Zelensky phone call should become part of the House Intelligence Committee investigation. The origins of the Justice Department opinion should be another.
Without Atkinson’s doggedness, I believe there would be far less transparency with the American public over the call itself or what it may or may not prove about the President’s actions.
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