I’ve now done a first read through of both the whistleblower complaint and the Intelligence Community Inspector General’s accompanying letter. I think the following from the whistleblower’s complaint and the Intelligence Community Inspector General’s letter are the key takeaways. Emphasis is my own.
Here’s the key takeaway that sets up why this is an “urgent concern” and clearly under the purview of the Director of National Intelligence, according to Inspector General Atkinson’s accompanying letter. And, as I wrote last week, it is because what the President had done, and what whichever staff had done to misclassify the Memorandum of Conversation (MEMCON) by upclassifying it, creates a serious counterintelligence matter. Counterintelligence matters are clearly under the purview of the Director of National Intelligence. This is from page 3 and it is the first full paragraph on that page.
As stated above, to constitute an “urgent concern” under 50 U.S.C. Section 3033(k)(5)(G)(i), the information reported by the Complainant must constitute “[a] serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the authority of the Director of National Intelligence involving classified information”8 Here, the Complainant’s Letter alleged, among other things, that the President of the United States, in a telephone call with Ukrainian President Volodymyr Zelenskyy on July 25, 2019, “sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid.” U.S laws and regulations prohibit 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.9 Similarly, U.S. laws and regulations prohibit a person from soliciting, accepting, or connection with a Federal, State, or local election.10 Further, in the ICIG’s judgement, alleged conduct by a senior U.S. public official to seek foreign assistance to interfere in or influence a Federal election would constitute a “serious or flagrant problem [or] abuse” under 50 U.S.C. Section 3033(k)(5)(i), which would also 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.
Here’s the larger and more important key takeaway that provides the full context as to why this is a counterintelligence concern. It can be found in the whistleblower’s complaint. From the final section on page 3:
II. Efforts to restrict access to records related to the call
In the days following the phone call, I learned from multiple U.S. officials that senior White House officials had intervened to “lock down” all records of the phone call, especially the official word-for-word transcript of the call that was produced – as is customary – by the White House Situation Room. This set of actions underscored to me that White House officials understood the gravity of what had transpired in the call.
- White House officials told me they were “directed” by White House lawyers to remove the electronic transcript from the computer system in which transcripts are typically stored for coordination, finalization, and distribution to Cabinet-level-officials.
- Instead, the transcript was loaded into a separate electronic system that is otherwise used to store and handle classified information of an especially sensitive nature. One White House official described this act as an abuse of this electronic system because the cal did not contain anything remotely sensitive from a national security perspective.
I do not know whether similar measures were taken to restrict access to other records of the call, such as contemporaneous handwritten notes taken by those who listened in.
And from the first substantive paragraph on page 1 of the “Classified Appendix” of the whistleblower’s complaint:
(U) Additional information related to Section II
According to multiple White House officials I spoke with, the transcript of the President’s call with President Zelenskyy was placed into a computer system managed directly by the National Security Council (NSC) Directorate for Intelligence Programs.This is a standalone computer system reserved for codeword-level intelligence information, such as covert action. According to the information I received from White House officials, some officials voiced concerns internally that this would be an abuse of the system and was not consistent with the responsibilities of the Directorate for Intelligence Programs.According to White House officials I spoke with, this was “not the first time” under this Administration that a Presidential transcript was placed into this codeword-level system solely for the purpose of protecting politically sensitive – rather than national security sensitive – information.
What the whistleblower is alleging is repeated deliberate misclassification of information. Specifically misclassification by upclassification in order to avoid embarrassing the President and for protecting him from the consequences of his own actions. Essentially an attempt to use the classification to cover for and protect the President. The classification system is not supposed to be, by regulation and guideline, used to prevent embarrassment to the government or to government officials. These parts of the regs and guidelines are, of course, honored more in the breach than in the observance. Regardless, routinely misclassifying information is a serious counterintelligence concern. And the people who have been doing it, as well as those who knew about it and didn’t report it to their Special Security Officer (uniformed and civilian personnel) or Facility Security Officer (contractors) is in real jeopardy.
And Congress really needs to determine just how broad and deep the alleged misclassification scheme goes, who was involved, and what, exactly was misclassified and why. If the whistleblower’s allegations here are correct and can be sustained, there is a huge problem in the White House, under guidance by the White House Counsel’s Office, to purposefully misclassify and mishandle classified information. Which is illegal, a serious insider threat, and a serious counterintelligence issue!
Update at 11:50 AM EDT
There is one other important key takeaway here based on the allegations made by the whistleblower and delineated in Section II and the appendix to Section II that I transcribed above, as well as Acting DNI Maguire’s testimony this morning. In responding to Congressman Schiff’s questioning, Acting DNI Maguire finally made it clear that he first went to the White House Counsel’s Office and then to the Office of Legal Counsel with his questions regarding executive privilege. Here’s the important key takeaway: the whistleblower alleges an ongoing series of criminal acts – misclassifying US government information to avoid embarrassment to the President, appropriate congressional oversight of the President, and any potential political (impeachment, not being reelected) or criminal jeopardy to the President as a consequence of his own behavior. The whistleblower alleges that there is an ongoing criminal scheme, instigated and overseen by attorneys in the White House Counsel’s Office, to misclassify information. Acting DNI Maguire took the allegations to the White House Counsel’s Office that is alleged to be engaging in criminal behavior regarding the deliberate mishandling and misclassifying information for an opinion on whether he needs to comply with the law and forward the complaint to Congress in a timely manner. The White House Counsel’s Office is not a good faith actor in this, they’re alleged to be part of an ongoing series of crimes. This is equivalent of a police chief taking a criminal complaint to the accused criminal to ask whether they should forward the criminal complaint to the prosecutor’s office for action. The alleged criminals were allowed to actively participate in the coverup!
Open thread!
Renie
Do you think we will learn who these individuals are that changed the classifications? If so, will they have to resign and have post employment consequences to face?
Will this be used as a defense that trump didn’t know they were doing this?
Eural Joiner
Thanks for the update – I’m a high school social studies teacher and I’m trying to keep my students up to date and clear on what is going on. Your analysis has been a great help!
Also – ironically – our class topic today was the “principles of the Constitution” Good timing, heh :)
Adam L Silverman
@Renie: As reply to your first two questions: I don’t know, but hope so. For your third question: it’s certainly possible.
clay
So the next question — and I’m sure what the House Select Committee on Impeachment will look into is — what other calls were treated in a similar way, and what was their content?
Lapassionara
Adam, do all calls with foreign leaders take place in the situation room? Are they all transcribed? Could Trump call a foreign leader on his own, without being witnessed?
Does the WH have civil service employees who serve from administration to administration, or is the turnover in personnel complete at the beginning of each new administration.
JoyceH
@clay: Great minds, thinking alike! I too immediately went to “what OTHER conversations are on that server!?”
Adam L Silverman
@Eural Joiner: I’m always available to face time a seminar. I do it for several friends from grad school who have me in by facetime for their college classes.
Adam L Silverman
@Lapassionara: We have reporting that the President uses his unsecured cell phone to make calls to a variety of folks after working hours while up in the residence. It is unclear if that includes foreign leaders, but it is implied in the reporting. I did several posts on this. The most recent was a couple of weeks ago. If this is the case, then there will be no memorialization of those calls, other than what the person on the other end is making and what is being captured by other countries’ Signals Intelligence intercepts. So even more of a concern.
dr. bloor
@Adam L Silverman: Certainly a possible defense, but hard to see how they could effectively pull it off. That would require a whole lot of obviously corrupted officials and attorneys to be willing to take criminal charges and/or disbarment for Trump.
Lapassionara
@Lapassionara: Thanks. And thanks for this informative post.
Wjs
So they were storing harmless, unclassified material on the wrong server and handling it poorly?
That’s unprecedented!
Eural Joiner
@Adam L Silverman:
WOW! Thanks for the offer, I’ll chat with my colleagues who might be really interested if we could wrangle a time for it. Several of them teach the more advanced AP/IB classes that would be a lot more engaged and interested. I’ll holler at you if they won’t to try something!
Damien
@Wjs:
Ahhh, I see. So basically you’re trying to announce to as many people as possible that you’re an idiot? Or are you being purposely obtuse?
Let’s go slow:
So in the soppy sponge that is your brain, storing no classified information on a personal email server, that despite eight useless committee investigations showed zero criminal behavior, is the same thing as intentionally hiding criminal acts and embarrassing information by illegally up classifying it onto a government server meant for sensitive intelligence.
Uh….huh.
I hope you’re just trolling
Adam L Silverman
I just added this up top as an update:
Adam L Silverman
@Eural Joiner: No worries and standing by. If you want to try to synch up and get everyone into one big conference room, I’m happy to do that if it is easier. Just shoot me an email using the contact a front pager tool.
Millard Filmore
@Wjs: And a few decades ago, when Scientology stole government documents of L Ron Hubbard out of the archives, they wanted to be charged with theft of copy paper. Cause paper is all they stole, right?
West of the Rockies
@Adam L Silverman:
Thank you for this post, Adam. Heads must roll. Careers must be ended. All because greed, vanity, and a piggy thirst for power are the engines behind this administration and its enablers.
Barbara
I appreciate an understanding of the technical side of the house, but how about: Trump leaned on a foreign leader by withholding military assistance unless he agreed to help him in the 2020 election. He tried to hide his wrongdoing by marking the transcript of his phone call as classified information.
JPL
@Adam L Silverman: What a wonderful opportunity for those students. I hope that it works out.
MattF
I wonder why the perps didn’t simply destroy the evidence. Why save it? Especially considering, specificially, that saving it the way they did is a serious criminal act.
Gravenstone
@Adam L Silverman: You have to guess this whole upclassification for political purposes approach came about because Trump demanded some previous record be destroyed. When informed that he couldn’t do that, the change in classification and storage was identified as their ultimate alternative to address his wishes while still attempting to comply with records retention requirements.
Gravenstone
@Damien: @Millard Filmore: I’m going to suggest that you two might be a bit sarcasm impaired this morning. Consider who else was accused of improperly handling (inappropriately) classified documents…
Adam L Silverman
@Gravenstone: At this point who knows. All of these folks, from the President to Don McGahn to Emmett Flood to Pat Cipollone to Bill Barr, are completely disdainful of Congress, congressional oversight, paranoid, and convinced the president, and especially this President, is an elected king.
Adam L Silverman
@Gravenstone: Chester A. Arthur?
JPL
@MattF: Are we sure they aren’t doing that now.
MattF
@JPL: I suppose various Nixon aides learned that exact lesson the hard way. I’ll note also that lots of documents are destroyed in due course of everyday business, so there are many ways to do it without attracting notice.
StringOnAStick
@MattF: Adam can correct me if I’m wrong but I think the official note takers/transcribe rs assigned to the SCIF are career government employees, not tRump sycophants. I also suspect that since they work in teams, tRump can’t do what he did with his translator in Helsinki (confiscate the transcript). I also suspect that since it all goes immediately into an electronic records system that being fast with a shredder isn’t going to save their collective bacon. How fast things are now moving means mistakes will be made in their attempts to do so anyway, and that’s just more obvious lawbreaking that even the politically uninterested can grok.
StringOnAStick
@StringOnAStick: I also think that once tRump realized they were going to survive the Mueller report that any brakes on their behavior were gone. Or so they thought. Heh.
Adam L Silverman
@StringOnAStick: Yep, you are largely correct. This stuff is either all in the highest classification server, which according to the complaint, is under control of the NSC’s Director of Intelligence Programs or misclassified by upclassification hard copy in secure physical storage at the White House or both.
Ceci n est pas mon nym
Adam, I believe that both the classification and the declassification of this information require someone with Original Classification Authority. I believe also that very few people in the government have that authority, but that it can be delegated. But Original Classification is not something I paid much attention to as it’s never been something I ever was involved with, so I don’t know the details of who or how or what.
The material we saw in the released portions of the whistleblower report, and what we’re hearing about the phone records deliberately and illegally put on the classified computer system, is clearly being classified erroneously. But nevertheless I’m guessing it requires somebody with Original Authority to downgrade the markings and approve its release.
What’s your take on how this stuff got downgraded so quickly and easily, and who outside the long slimy reach of the White House and Bill Barr has the power and authority to do it? And to get us those phone call notes?
Adam L Silverman
@Ceci n est pas mon nym: In the case of the complaint and the accompanying letter, the Original Classification Authority is the DNI. The President can, of course, classify or declassify whatever he wants for whatever reason, but there is supposed to be a formal review to determine what, if anything needs to be redacted despite the order, before it is carried out. In this case, I have no idea who made the call on this.
unrelatedwaffle
I really hope this all ends in an unfathomably wholesome manner like the Simpsons episode Mr. Lisa Goes to Washington. Corruption exposed! Democracy restored! We can look our children in the eye again! I won’t hold my breath.
I can’t tell what’s more depressing, that they thought this scheme to misclassify was a brilliant strategy that would surely never be exposed, or that it almost wasn’t.
Anonymous At Work
@Adam L Silverman: What is the process for review of improper upclassification? Have the same people accused of a criminal conspiracy investigate themselves and their own conduct? Independent review by ICIG/staff?
That this will need to be reviewed, thoroughly, by investigative staff reporting to Congress or an independent body, is something that will take ages through the Courts and Supreme Court has at least 1 vote to overturn US v. Nixon.
Puddinhead
@Adam L Silverman: Never trust guys with mutton chops.
Roger Moore
@Adam L Silverman:
The problem is that, in the analogy, the criminal he’s investigating is the mayor, who can fire him at will. Oh yeah, and it’s the acting police chief rather than the permanent one, because the mayor just forced the old police chief to resign. It’s still an incredibly serious problem, and you’d hope the police chief would be willing to risk his job to do the right thing, but it’s easy to understand why he’d be reluctant to stick out his neck.
Adam L Silverman
@unrelatedwaffle: I would not hold your breath.
Adam L Silverman
@Anonymous At Work: It should be handed off to one of the three letter agencies. Usually it goes to FBI’s National Security section and they then task it to the CIA in general and other Intel agencies in specific if the material deals with something under their specific mandates.
Adam L Silverman
@Puddinhead: He was the best at what he did and what he did wasn’t very nice. Bub!
Adam L Silverman
@Roger Moore: How about you just write the updates from now on?//
Roger Moore
@MattF:
I think the key is that at this point the number of people involved is too big to assume that everyone is willing to be part of the conspiracy. Destroying the evidence is an obvious violation of black letter law (at least the Presidential Records Act and very likely obstruction of justice) so people who don’t want to be part of the conspiracy may refuse to go along and decide to blow the whistle. In contrast, classifying information at too high a level is the kind of thing that happens all the time, and people in the national security business have obedience to the classification system drilled into them, so it seems like a better bet to take that approach. If what the complaint says is correct, they’ve done exactly that in the past without anyone blowing the whistle, so they probably thought it was safe to do it again.
oldgold
Question: Do you suspect that Dan Coats knew about this and quit, along with his chief deputy, before it rolled up to his door?
Adam L Silverman
@oldgold: I don’t know. But something certainly had him spooked.
Motivated Seller
Feeling a bit mystified Adam, but what exactly do you mean by?
It sounds like you are saying guidance is routinely ignored? Sometimes ignored? Regularly ignored, but no one can tell when they are ignored?
???
Anonymous At Work
@Adam L Silverman: Would the DNI play any role in this process? You know, Dan Coats, the DNI that quit shortly after this call at the same time his Principal Deputy resigned at his urging? I don’t want that thread to get lost.
Unclear if the issue was a “resign in protest [silently to protect Republicans]” or “resign ahead of firing squad.”
retr2327
Adam: I agree with the upclassification issue putting the matter squarely under the (acting) DNI, but what about the other argument that the whistleblower/IC raises? I.e., that since the DNI has election security oversight responsibilities (pursuant to, ironically, Trump’s EO), the matter also falls under the DNI’s jurisdiction for that reason as well? What are your thoughts on that?
PPCLI
@Adam L Silverman:
@Anonymous At Work: There was one thing about the Coats resignation that I found baffling. Right after he resigned, He apparently interrupted a meeting to urge Sue Gordon to resign as well. I couldn’t understand why he would do that, but now I suspect his message was essentially: There is shitstorm on the way and believe me, you want no part of it.
Anonymous At Work
@PPCLI: Citation?
That’s not a small thing. “I just resigned but I’m barging into your meeting to pull my deputy aside and urge her to quit rather than becoming Acting DNI.” Nothing suspicious about that…
wjs
@Damien: SMDH – of course.
Obtuse on purpose. The irony of a man being impeached for mishandling information after he campaigned on putting his opponents in jail for allegedly mishandling classified information (when they clearly did no such thing) is lost on the general population.
We were supposed to be tired of all the winning by now, and instead we have a Giuliani/Barr/Pompeo fiasco on our hands. All of these people working for Trump should be in Federal prison for the next fifty years, at a minimum.
misterpuff
But His Server
Damien
@wjs:
I apologize. It’s so goddamn hard to decipher irony anymore.
Adam L Silverman
@Anonymous At Work: I don’t know. I really don’t. I don’t know what made Coats resign when he did. Nor what spooked him into taking his deputy with him.
Adam L Silverman
@retr2327: I would agree that it is. But it is also under the purview of the Secretary of DHS, the Director of the NSA, the Director of Central Intelligence, the Director of the FBI, and several others. Basically depending on what part of the issue is being worked, it is a shared responsibility.
Adam L Silverman
@PPCLI: Something clearly had him spooked. It might have been he just got wind that the President was going to fire her and he didn’t want her to have to go through that mess and what, if anything, it would do to her earned retirement benefits as a career Intelligence officer and official. It might have been something else.
Aleta
Here’s a link for your last lines, from former police chief Rep. Val Demings speaking to Director Maguire this morning (video):
retr2327
@Adam L Silverman: yes. But the argument that the subject of the whistleblower complaint was not part of the DNI’s jurisdiction was key to his determination that it did not fall under the WB statute. To the extent that complaint included election security, which it plainly did, that’s a pretty clear error.
Wjs
@Damien: not necessary, entirely my fault.