CIA s Top Lawyer Made criminal Referral On Complaint About Trump Ukraine Call

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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. But a timeline provided by U.S. Trump found the whistleblower's complaints credible, troubling and worthy of further inquiry starting soon after the president's July phone call. Berit Berger, a former federal prosecutor who heads the Center for the Advancement of Public Integrity at Columbia Law School. 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. 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. It is illegal for Americans to solicit foreign contributions to political campaigns.

Justice Department officials have said they only investigated the president's Ukraine call for violations of campaign finance law because it was the only statute mentioned in the whistleblower's complaint. Former federal prosecutors contend that the conduct could have fit other criminal statutes, including those involving extortion, bribery, conflict of interest or fraud, that might apply to the president or those close to him. Justice Department spokeswoman Kerri Kupec told NBC News that the decision not to open an investigation was made by the head of the criminal division, Brian Benczkowski, in consultation with career lawyers at the public integrity section. She and other officials declined to say whether anyone dissented. The operative Justice Department standard that the president can't be indicted while in office was not a factor, she said. Barr has said he believes the president can be investigated and prosecutors can make a determination whether he committed criminal conduct. Kupec declined to comment on whether the Justice Department was investigating any other aspect of the Ukraine matter. There has been no public indication, however, of any such investigation.

Some legal experts are puzzled by the Justice Department's narrow approach. Chuck Rosenberg, an NBC News contributor and a former U.S. In a case in which a government official is allegedly using his office for personal gain, and pressuring someone to extract a favor, the bribery and extortion statutes are usually considered, Berger said. The Foreign Corrupt Practices Act, which prohibits bribery of foreign officials, may also have been implicated, she said. But when he first passed on his concerns, they were not so specific, officials said. He first complained at his own agency, sending word through a colleague to a CIA lawyer. The complaint eventually reached the spy agency's top lawyer, Elwood, officials said. She was told there were concerns about the president's conduct on a call with a foreign leader, but not which leader, officials said. She also was told that others at the National Security Council shared the concerns, so she called Eisenberg, the top NSC lawyer, officials said. He was already aware that people inside his agency believed something improper had occurred on the July 25 call with the Ukrainian president, officials said.

After consulting with others at their respective agencies and learning more details about the complaint, Elwood and Eisenberg alerted the Justice Department's Demers, during the Aug. 14 phone call, in what Elwood considered to be a criminal referral. What the Justice Department did next is not entirely clear. A DOJ official said it was the department's perspective that a phone call did not constitute a formal criminal referral that allowed them to consider an investigation, and that a referral needed to be in writing. The whistleblower was already taking separate action. On Aug. 12, he filed a complaint with the Inspector General of the Intelligence Community, after consulting with a staff member on the House Intelligence Committee, officials said. At the end of August, the acting director of national intelligence, Joseph Maguire, sent the Justice Department his own criminal referral based on the whistleblower complaint, he has confirmed. Kupec says career prosecutors in the Public Integrity Section, which works on corruption cases, were involved in deciding how to proceed, as was the national security division and the Office of Legal Counsel. Justice Department officials said they focused on campaign finance law because that was how the allegations were framed in the whistleblower complaint. Paul Seamus Ryan, vice president of policy and litigation at Common Cause, is among those questioning even the narrow campaign finance analysis. Common Cause has filed a complaint with the Justice Department and the Federal Election Commission accusing Trump of violating campaign law.