Experts are raising questions about why the Justice Department did not open an investigation.
WASHINGTON — Weeks before the whistleblower’s complaint became public, the CIA’s top lawyer made what she considered to be a criminal referral to the Justice Department about the whistleblower’s allegations that President Donald Trump abused his office in pressuring the Ukrainian president, U.S. officials familiar with the matter tell NBC News.
The move by the CIA’s general counsel, Trump appointee Courtney Simmons Elwood, meant she and other senior officials had concluded a potential crime had been committed, raising more questions about why the Justice Department later declined to open an investigation.
The phone call that Elwood considered to be a criminal referral is in addition to the referral later received as a letter from the Inspector General for the Intelligence Community regarding the whistleblower complaint.
Justice Department officials said they were unclear whether Elwood was making a criminal referral and followed up with her later to seek clarification but she remained vague.
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While that timeline and the CIA general counsel’s contact with the Justice Department has been previously disclosed, it has not been reported that the CIA’s top lawyer intended her call to be a criminal referral about the president’s conduct, acting under rules set forth in a memo governing how intelligence agencies should report allegations of federal crimes.
The fact that she and other top Trump administration political appointees saw potential misconduct in the whistleblower’s early account of alleged presidential abuses puts a new spotlight on the Justice Department’s later decision to decline to open a criminal investigation — a decision that the Justice Department said publicly was based purely on an analysis of whether the president committed a campaign finance law violation.
“They didn’t do any of the sort of bread-and-butter type investigatory steps that would flush out what potential crimes may have been committed,” said Berit Berger, a former federal prosecutor who heads the Center for the Advancement of Public Integrity at Columbia Law School. “I don’t understand the rationale for that and it’s just so contrary to how normal prosecutors work. We have started investigations on far less.”
Elwood, the CIA’s general counsel, first learned about the matter because the complainant, a CIA officer, passed his concerns about the president on to her through a colleague. On Aug. 14, she participated in a conference call with the top national security lawyer at the White House and the chief of the Justice Department’s National Security Division.
On that call, Elwood and John Eisenberg, the top legal adviser to the White House National Security Council, told the top Justice Department national security lawyer, John Demers, that the allegations merited examination by the DOJ, officials said.
According to the officials, Elwood was acting under rules that a report must occur if there is a reasonable basis to the allegations, defined as “facts and circumstances…that would cause a person of reasonable caution to believe that a crime has been, is being, or will be committed.”
A Justice Department official said Attorney General William Barr was made aware of the conversation with Elwood and Eisenberg, and their concerns about the president’s behavior, in the days that followed.
Justice Department officials now say they didn’t consider the phone conversation a formal criminal referral because it was not in written form. A separate criminal referral came later from the Office of the Director of National Intelligence, which was based solely on the whistleblower’s official written complaint.
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NBC News: Trump-appointed general counsel Courtney Simmons Elwood intended for the whistleblower complaint referral she made to DOJ to be a criminal referral, via @KenDilanianNBC & @JuliaEAinsley https://t.co/zqLyWhyPoV
— Michael Del Moro (@MikeDelMoro) October 4, 2019
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