Boyd, Stephen E. (OLA) From: Boyd, Stephen E. (OlA) Sent: Wednesday, September 25, 2019 11:19 AM To: (b)(6) - Sen. :\1ike Lee Subject: Documents Attachments: Tra nscript - Undassified.pdf; 2019-09-24 -AAG Engel - Urgent Concern Determination by IC IG (slip op) - FINAL.pdf Senator: The AG asked me to forward these do-cuments to you. We'd ask that they remain embargoed until 10 AM. Hope this is helpful. let me know if we can be of assistance or if you have questions. Stephen Stephen E. Boyd Assistant Attorney General l:.S. Department of Ju stice Washington, D.C. (b)(6) Document ID: 0.7.363.5663 20200330-0000612 (Slip Opinion) “Urgent Concern” Determination by the Inspector General of the Intelligence Community A complaint from an intelligence-community employee about statements made by the President during a telephone call with a foreign leader doesurgent not involve an “ concern,” as definedin 50 U.S.C. § 3033(k)(5)(G), because the alleged conductdoes notrelateto the “ funding, administration, oroperationofanintelligence unactivity”- derthe authorityofthe Director ofNational Intelligence. As aresult, the statute does not require the Director to transmit the complaint to the congressional intelligence committees. September 24, 2019 MEMORANDUM O PINION FOR THEGENERAL C OUNSEL OFFICE OF THEDIRECTOR OF NATIONAL INTELLIGENCE OnAugust26, 2019, theInspectorGeneraloftheIntelligenceCommu - nity(“ ICIG”) forwarded to the ActingDirector ofNationalIntelligence (“DNI”)acomplaintfromanemployeewithintheintelligencecommuni - ty.* The complainantallegedthatunnamed “ White House officials” had expressed concern about the content of a telephone call between the President and a foreign leader. According to the ICIG, statements made by the President during the call could be viewed as soliciting a foreign campaign contribution in violation ofthe campaign-finance laws. In the ICIG’s view, the complaint addresses urgent an concern” “ for purposes of triggering statutory procedures that require expedited reporting of agency misconductto the congressional intelligence committees. Under the applicable statute, ifthe ICIGtransmits suchacomplaintto the DNI, the DNI has seven days to forwarditto the intelligence See committees. 50 U.S.C. § 3033(k)(5)(C). The complaint does not arise in connection with the operation ofany U.S. government intelligence activity, and the alleged misconduct does notinvolve anymemberoftheintelligencecommunity. Rather, thecom- plaintarises outofaconfidentialdiplomatic communicationbetweenthe Presidentandaforeignleaderthattheintelligence-communitycomplain - antreceivedsecondhand. The question is whethersuchacomplaintfalls * This memorandumisanunclassifiedversionofthememorandumwiththesametitle that we provided on September 3, 2019. We have changed the prior version to avoid references to certain details that remain classified. 1 Document ID: 0.7.363.5663-000001 20200330-0000613 Opinions ofthe Office ofLegalCounselin Volume 43 within the statutory definition urgent of“ concern” that the law requires the DNI to forward to the intelligence committees. We conclude that it does not. The alleged misconduct “ is not an urgent concern” within the meaning ofthe statute because itdoes not“ concern the- funding, admin istration, or operation ofan intelligence activity” under the authority of the DNI. Id. § 3033(k)(5)(G)(i). That phrase includes matters relating to intelligence activities subjectto the DNI’s supervision, butitdoes not include allegations of wrongdoing arising outside of any intelligence activity or outside the intelligence community itself. Our conclusion that urgent the “ concern” requirement is inapplicable does not mean that the DNI or the ICIG must leave such allegations unaddressed. To the contrary, the ICIG statute, 50 U.S.C. § 3033(k)(6), makes clear that the ICIG remains subject to 28 U.S.C. § 535, which broadlyrequiresreportingtotheAttorneyGeneralof“ [a]nyinformation, allegation, matter, or complaint witnessed, discovered, or received in a department or agency . relating to violations ofFederal criminal law involving Government officers and employees.” 28 U.S.C. § 535(b). Accordingly, shouldthe DNIorthe ICIGreceive acrediblecomplaintof allegedcriminal conductthatdoes notinvolve “ an urgent concern,” the appropriate action is to refer the matter to the Department of Justice, rather than to report to the intelligence committees under section 3033(k)(5). Consistent with 28 U.S.C. § 535, the ICIG’s letter and the attached complaint have been referred to the Criminal Division ofthe Department ofJustice for appropriate review. I. An employee “ of an element of the intelligence community” (or an intelligence-communitycontractor) who “ intends toreportto Congress a complaint or information with respect to an urgent concern may report suchcomplaintorinformationto the” ICIG. 50U.S.C. § 3033(k)(5)(A).1 1 Section8HoftheInspectorGeneralActof1978 IGAct”),(“ 5 U.S.C. app., parallels the urgent-concernprovision ofthe ICIG statute, 50 U.S.C. § 3033(k)(5), and appears to provide another pathway to report an urgent concern to the ICIG or an appropriate inspector general. Because the complainant and the ICIG in this instance invoked only section 3033(k)(5), we address thatprovision inouropinion, butas discussedbelow, the DNI’s reporting obligation wouldbe the same undereitherprovision. Seeinfra PartII.A & n.4. 2 Document ID: 0.7.363.5663-000001 20200330-0000614 “UrgentConcern” Determination ythe b IGofthe Intelligence Community OnAugust12, 2019, theOfficeoftheICIGreceivedacomplaintpurport - ing to invoke this provision. The complainant allegedthathe or she had heardreportsfrom“ WhiteHouseofficials”that, inthecourseofaroutine diplomaticcommunicationbetweenthePresidentandaforeignleader,the President had made statements that the complainant viewed as seeking to pressure that leader to take an official action to help the President’s 2020 re-electioncampaign. The complainantdescribedthis communica- tion as arising during a scheduled call with the foreign- leader that, con sistentwithusualpractice, was monitoredby anumberofU.S. officials. Havingheardaboutthe President’s reportedstatements, the complainant expressedanintentto reportthis informationto theintelligence - commit tees. When the ICIG receives a complaint urgent about concern,” an “ the statuteprovidesthattheICIGthenhas14daysto“ determinewhetherthe complaint or information appears credible.” 50 U.S.C. § 3033(k)(5)(B). The ICIG determined that the complaint here “ involved - an urgent con cern” undersection3033(k)(5) andthatitappearedcredible. As relevant here, thestatutorydefinitionofan“ urgentconcern” includes “ [a] serious orflagrantproblem, abuse, [or] violation oflaw . -relating to the fund ing, administration, or operation of an intelligence activity within the responsibility and authority ofthe Director ofNational -Intelligence in volvingclassifiedinformation.” Id . § 3033(k)(5)(G)(i). Accordingto the ICIG, the President’s actions could serious involve or a “ flagrant prob- lem,”“ abuse,”orviolationoflaw, andtheICIGobservedthatfederallaw prohibitsanypersonfromsolicitingoracceptingacampaigncontribution ordonationfromaforeignnational. See, . ge., 52U.S.C. § 30121(a).2 The ICIG further noted that alleged misconduct by a senior U.S. official to seekforeignassistancetointerfereinorinfluenceafederalelectioncould potentially expose the official to serious national security- and counter intelligence risks. Althoughthe ICIG’s preliminaryreview some found “ indicia ofan arguable political bias on the part ofthe Complainant in favor ofa rival political candidate,” the ICIG concluded - that the com plaint’s allegations nonetheless appeared credible. 2 The ICIGdeterminedthatthe allegation appears “ credible” without conducting any detailed legal analysis concerning whether the allegation, iftrue, would amount to an unlawful solicitation ofa campaign contribution. We likewise do not express a view on the matter in this opinion. 3 Document ID: 0.7.363.5663-000001 20200330-0000615 Opinions ofthe Office ofLegalCounselin Volume 43 The ICIG concluded that the matter concerns an intelligence activity withintheDNI’sresponsibilityandauthority. HereasonedthattheDNIis the head ofthe intelligence community, acts as the principal adviser for intelligencemattersrelatedtonationalsecurity,andoverseestheNational IntelligenceProgramanditsbudget. Inaddition, theintelligencecommu - nity, under the DNI’s direction, protects against intelligence activities directedagainsttheUnitedStates, includingforeigneffortstointerferein our elections. The ICIG also found it relevant that the President has directed the DNI to issue a report, within 45 days ofa federal election, assessinganyinformationindicatingthataforeigngovernmentinterfered in that election. See Exec. Order No. 13848, § 1(a) (Sept. 12, 2018). For these reasons, the ICIG concluded that the complaint involves an intelligence activity within the responsibility and authority ofthe DNI. He thus transmitted the complaintto the DNI on August26, 2019. II. Youhave askedwhetherthe DNIhas astatutoryobligationto forward the complaint to the intelligence committees. We conclude that he does not. To constitute urgent an “ concern,” the alleged misconduct must involve the “ funding, administration, or operation of an intelligence activity within the responsibility and authority” ofthe DNI. 50 U.S.C. § 3033(k)(5)(G)(i). SimilartootheraspectsoftheICIG’sresponsibilities, the urgent-concern provision permits employees to bring- to the intelli gencecommittees’ attentioncredibleallegationsofseriousabusesarising