Jurisprudence

The Justice Department Willfully Ignored a Possible White House Cover-Up of the Ukraine Call

Joseph Maguire
Acting Director of National Intelligence Joseph Maguire waits for a hearing of the House Intelligence Committee regarding a whistleblower complaint on Capitol Hill on Thursday.
Brendan Smialowski/AFP/Getty Images

The Department of Justice has been a key player in Donald Trump’s whistleblower scandal from the start. It was the DOJ that prohibited acting Director of National Intelligence Joseph Maguire from forwarding the whistleblower complaint to Congress, referring it instead to the Justice Department. The agency then determined that the president had committed no crime, shielding Trump from further scrutiny. A document released on Thursday reveals that the Justice Department went even further: It willfully ignored an accusation that the White House attempted to cover up damning evidence of Trump’s misconduct.

At the heart of the whistleblower affair is a July 25 call in which Trump pressured Ukrainian President Volodymyr Zelensky to launch an investigation of presidential candidate Joe Biden and his son, Hunter Biden, while withholding military aid to the country. Accusations of wrongdoing by Joe and Hunter Biden in Ukraine have been thoroughly discredited. Soliciting opposition research on a political rival from a foreign national is a federal crime and an egregious misuse of the executive office.

But the whistleblower’s complaint, released with redactions on Thursday, contains a separate, related allegation of official misconduct. It states that White House officials were told to “lock down” records of the Trump-Zelensky call. These officials were “directed” by White House lawyers “to remove the electronic transcript from the computer system in which such transcripts are typically stored.” The memo was instead “loaded into a separate electronic system,” one managed by the National Security Council’s Directorate for Intelligence Programs. “This is a standalone computer system reserved for codeword-level intelligence information,” the complaint noted, “such as covert action.”

Multiple White House officials “voiced concerns internally that this would be an abuse of the system.” After all, the memo “did not contain anything remotely sensitive from a national security perspective.” But these officials told the whistleblower that this was “not the first time” that Trump has abused this system to safeguard “politically sensitive—rather than national security sensitive—information.”

So the White House allegedly attempted to bury a memo of the Trump-Zelensky call in a system reserved for highly classified national security materials. And it has used this tactic before to conceal “politically sensitive” information that the president does not want Congress or the public to see.

This information is undoubtedly relevant for the House of Representatives as it embarks upon an impeachment inquiry. It also discredits—or at least calls into serious question—the Justice Department’s rationalization for hiding the complaint from Congress. The whistleblower followed the legal procedure: He sent his complaint to Michael Atkinson, the Intelligence Community inspector general, who found the complaint to be of “urgent concern” and sent it to acting Director of National Intelligence Joseph Maguire, who should have forwarded the complaint to congressional intelligence committees within seven days. But he did not, because the DOJ’s Office of Legal Counsel told him he could not.

Initially, the OLC’s reasoning was a mystery, because it keeps most of its opinions secret. On Tuesday, however, the office released an altered version of its opinion, rewritten “to avoid references to certain details that remain classified.” Its opinion stated that the complaint did not involve an “abuse” relating to “the funding, administration, or operation of an intelligence activity” under the authority of the director of national intelligence. As a result, it was not an “urgent concern” under the whistleblower protection law, and Maguire could not send it to Congress.

The OLC’s modified opinion was already dubious, because it did not really explain where Maguire got the authority to overrule Atkinson’s determination. But when the whistleblower complaint was finally released to the public on Thursday, a bigger problem with the altered OLC opinion arose: It did not address allegations of a White House cover-up at all. It simply ignored the accusation that officials placed the Trump-Zelensky memo in a system reserved for classified materials.

That mystery was solved, in part, when the OLC released a redacted version of its original opinion on Thursday. This document, dated Sept. 3, does address the alleged cover-up—in a single footnote. “The complainant stated that some officials at the White House had advised that this action may have been an abuse of the system,” OLC acknowledged, but Atkinson “did not discuss this allegation in concluding that the complaint stated an urgent concern.”

This single sentence, buried in a footnote at the bottom of a page, is bizarre. The entire opinion is devoted to explaining why the complaint does not involve an “abuse” pertaining to the “operation of an intelligence activity” under Maguire’s purview, and therefore must be hidden from Congress. Yet the White House’s cover-up neatly fits into this category. Maguire is a member of the National Security Council, which is staffed by officers from intelligence agencies under his authority. He has authority over classification of sensitive materials. The White House allegedly placed the Trump-Zelensky memo—and other politically damaging materials—in an electronic system managed by the National Security Council’s Directorate for Intelligence Programs. Its actions would seem to qualify as “abuse” of the “operation of an intelligence activity” under Maguire’s authority.

The OLC disregarded this argument, purportedly because Atkinson did not expressly raise it. That claim is wildly inconsistent with the remainder of the OLC’s opinion, which provides an independent assessment of the whistleblower’s complaint, divorced from Atkinson’s own conclusions. The OLC was happy to perform its own legal analysis of the complaint to protect Trump, to identify legal infirmities that Atkinson did not spot. But it essentially crossed out a portion of the complaint that hurts the president—and blamed Atkinson. It is as if the OLC believed Atkinson somehow nullified the legal impact of the alleged cover-up by failing to highlight it.

The OLC is supposed to exercise its judgment independent from political concerns. But it now appears obvious that the office framed the whistleblower complaint in the best possible light for Trump, presumably to keep it concealed from Congress. OLC cherry-picked allegations from the complaint to justify quashing it. At the same time, the office ignored a bombshell accusation of a cover-up that should have forced Maguire to send the complaint to lawmakers. There is no independence at OLC today, just a partisan fixation on protecting Trump at all costs.