\"Urgent Concern\" Determination by the Inspector General of the Intelligence Community ( 2019 )

(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 does not involve an “urgent
concern,” as defined in 50 U.S.C. § 3033(k)(5)(G), because the alleged conduct does
not relate to “the funding, administration, or operation of an intelligence activity” un-
der the authority of the Director of National Intelligence. As a result, the statute does
not require the Director to transmit the complaint to the congressional intelligence
committees.
September 24, 2019
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
On August 26, 2019, the Inspector General of the Intelligence Commu-
nity (“ICIG”) forwarded to the Acting Director of National Intelligence
(“DNI”) a complaint from an employee within the intelligence communi-
ty. * The complainant alleged that unnamed “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 of the campaign-finance laws. In the
ICIG’s view, the complaint addresses an “urgent concern” for purposes
of triggering statutory procedures that require expedited reporting of
agency misconduct to the congressional intelligence committees. Under
the applicable statute, if the ICIG transmits such a complaint to the DNI,
the DNI has seven days to forward it to the intelligence committees. See
50 U.S.C. § 3033(k)(5)(C).
The complaint does not arise in connection with the operation of any
U.S. government intelligence activity, and the alleged misconduct does
not involve any member of the intelligence community. Rather, the com-
plaint arises out of a confidential diplomatic communication between the
President and a foreign leader that the intelligence-community complain-
ant received secondhand. The question is whether such a complaint falls
* This memorandum is an unclassified version of the memorandum with the same title
that we provided on September 3, 2019. We have changed the prior version to avoid
references to certain details that remain classified.
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Opinions of the Office of Legal Counsel in Volume 43
within the statutory definition of “urgent 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 of the statute because it does not concern “the funding, admin-
istration, or operation of an intelligence activity” under the authority of
the DNI. Id. § 3033(k)(5)(G)(i). That phrase includes matters relating
to intelligence activities subject to the DNI’s supervision, but it does not
include allegations of wrongdoing arising outside of any intelligence
activity or outside the intelligence community itself.
Our conclusion that the “urgent 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
broadly requires reporting to the Attorney General of “[a]ny information,
allegation, matter, or complaint witnessed, discovered, or received in a
department or agency . . . relating to violations of Federal criminal law
involving Government officers and employees.” 28 U.S.C. § 535(b).
Accordingly, should the DNI or the ICIG receive a credible complaint of
alleged criminal conduct that does not involve 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 of the
Department of Justice for appropriate review.
I.
An “employee of an element of the intelligence community” (or an
intelligence-community contractor) “who intends to report to Congress a
complaint or information with respect to an urgent concern may report
such complaint or information to the” ICIG. 50 U.S.C. § 3033(k)(5)(A). 1
1 Section 8H of the Inspector General Act of 1978 (“IG Act”), 5 U.S.C. app., parallels
the urgent-concern provision of the 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 that provision in our opinion, but as discussed below, the
DNI’s reporting obligation would be the same under either provision. See infra Part II.A
& n.4.
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“Urgent Concern” Determination by the IG of the Intelligence Community
On August 12, 2019, the Office of the ICIG received a complaint purport-
ing to invoke this provision. The complainant alleged that he or she had
heard reports from “White House officials” that, in the course of a routine
diplomatic communication between the President and a foreign leader, 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-election campaign. The complainant described this communica-
tion as arising during a scheduled call with the foreign leader that, con-
sistent with usual practice, was monitored by a number of U.S. officials.
Having heard about the President’s reported statements, the complainant
expressed an intent to report this information to the intelligence commit-
tees.
When the ICIG receives a complaint about an “urgent concern,” the
statute provides that the ICIG then has 14 days to “determine whether the
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” under section 3033(k)(5) and that it appeared credible. As relevant
here, the statutory definition of an “urgent concern” includes “[a] serious
or flagrant problem, abuse, [or] violation of law . . . relating to the fund-
ing, administration, or operation of an intelligence activity within the
responsibility and authority of the Director of National Intelligence in-
volving classified information.” Id. § 3033(k)(5)(G)(i). According to the
ICIG, the President’s actions could involve a “serious or flagrant prob-
lem,” “abuse,” or violation of law, and the ICIG observed that federal law
prohibits any person from soliciting or accepting a campaign contribution
or donation from a foreign national. See, e.g., 52 U.S.C. § 30121(a). 2 The
ICIG further noted that alleged misconduct by a senior U.S. official to
seek foreign assistance to interfere in or influence a federal election could
potentially expose the official to serious national security and counter-
intelligence risks. Although the ICIG’s preliminary review found “some
indicia of an arguable political bias on the part of the Complainant in
favor of a rival political candidate,” the ICIG concluded that the com-
plaint’s allegations nonetheless appeared credible.
2 The ICIG determined that the allegation “appears credible” without conducting any
detailed legal analysis concerning whether the allegation, if true, would amount to an
unlawful solicitation of a campaign contribution. We likewise do not express a view on
the matter in this opinion.
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Opinions of the Office of Legal Counsel in Volume 43
The ICIG concluded that the matter concerns an intelligence activity
within the DNI’s responsibility and authority. He reasoned that the DNI is
the head of the intelligence community, acts as the principal adviser for
intelligence matters related to national security, and oversees the National
Intelligence Program and its budget. In addition, the intelligence commu-
nity, under the DNI’s direction, protects against intelligence activities
directed against the United States, including foreign efforts to interfere in
our elections. The ICIG also found it relevant that the President has
directed the DNI to issue a report, within 45 days of a federal election,
assessing any information indicating that a foreign government interfered
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 of the DNI.
He thus transmitted the complaint to the DNI on August 26, 2019.
II.
You have asked whether the DNI has a statutory obligation to forward
the complaint to the intelligence committees. We conclude that he does
not. To constitute an “urgent concern,” the alleged misconduct must
involve “the funding, administration, or operation of an intelligence
activity within the responsibility and authority” of the DNI. 50 U.S.C.
§ 3033(k)(5)(G)(i). Similar to other aspects of the ICIG’s responsibilities,
the urgent-concern provision permits employees to bring to the intelli-
gence committees’ attention credible allegations of serious abuses arising
from within the U.S. intelligence community. 3 This provision, however,
does not cover every alleged violation of federal law or other abuse that
3 We have recognized constitutional concerns with statutory requirements that subordi-
nate executive officials disclose classified information to congressional committees.
See, e.g., Whistleblower Protections for Classified Disclosures, 22 Op. O.L.C. 92, 100
(1998). In addition, the materials here concern diplomatic communications, and as
Attorney General Janet Reno recognized, “[h]istory is replete with examples of the
Executive’s refusal to produce to Congress diplomatic communications and related
documents because of the prejudicial impact such disclosure could have on the President’s
ability to conduct foreign relations.” Assertion of Executive Privilege for Documents
Concerning Conduct of Foreign Affairs with Respect to Haiti, 20 Op. O.L.C. 5, 6 (1996)
(opinion of Attorney General Janet Reno). Addressing the statutory question in this
opinion, however, does not require us to consider constitutional limits on congressional
reporting requirements.
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“Urgent Concern” Determination by the IG of the Intelligence Community
comes to the attention of a member of the intelligence community. Where,
as here, the report concerns alleged misconduct by someone from outside
the intelligence community, separate from any “intelligence activity”
within the DNI’s purview, the matter is not an “urgent concern” under the
statute.
A.
Congress has specified certain procedures by which an intelligence-
community employee may submit a complaint to Congress. Those proce-
dures, which involve the ICIG, require that the subject of the complaint
present an “urgent concern.” In relevant part, an “urgent concern” is:
A serious or flagrant problem, abuse, violation of law or Executive
order, or deficiency relating to the funding, administration, or opera-
tion of an intelligence activity within the responsibility and authority
of the Director of National Intelligence involving classified infor-
mation, but does not include differences of opinions concerning pub-
lic policy matters.
50 U.S.C. § 3033(k)(5)(G)(i) (emphasis added). The Inspector General
Act contains a parallel provision that applies to complaints submitted
to inspectors general within the intelligence community. See IG Act
§ 8H(i)(1)(A), 5 U.S.C. app. (“A serious or flagrant problem, abuse,
violation of law or Executive order, or deficiency relating to the funding,
administration, or operations of an intelligence activity involving classi-
fied information, but does not include differences of opinions concerning
public policy matters.” (emphasis added)). 4
That definition undergirds the urgent-concern framework that applies
when “[a]n employee of an element of the intelligence community . . .
intends to report to Congress a complaint or information with respect to
an urgent concern.” 50 U.S.C. § 3033(k)(5)(A). The provision contem-
4 The definition of “urgent concern” in the IG Act is not limited to intelligence activi-
ties that are specifically “within the responsibility and authority of the” DNI because the
complaint procedures in section 8H are written to apply to multiple inspectors general
within the intelligence community. See IG Act § 8H(a)(1)(A)–(D), 5 U.S.C. app. (includ-
ing separate provisions for the Inspectors General for the Department of Defense, for the
Intelligence Community, for the Central Intelligence Agency, and for the Department of
Justice).
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plates, as relevant here, that the employee first “report[s] such complaint
or information to the [ICIG].” Id. The ICIG then has 14 days to evalu-
ate the credibility of the complaint “under subparagraph (A)” and
determine whether to transmit it to the DNI. Id. § 3033(k)(5)(B). If the
ICIG transmits the complaint to the DNI “under subparagraph (B),” then
the DNI “shall, within 7 calendar days of such receipt, forward such
transmittal to the congressional intelligence committees, together with any
comments the [DNI] considers appropriate.” Id. § 3033(k)(5)(C).
Each of those steps builds on the previous one, but they all must rest
on a sound jurisdictional foundation. If the complaint does not involve
an “urgent concern,” as defined in the statute, then the remaining proce-
dures are inapplicable. When the ICIG receives a complaint that is not
an “urgent concern,” then he has not received a report “under subpara-
graph (A)” and section 3033(k)(5)(B) does not trigger a reporting obliga-
tion. And when the DNI receives a transmittal that does not present an
urgent concern, then the DNI is not required to forward it to the congres-
sional committees, because the complaint is not one “under subparagraph
(B).” Id. § 3033(k)(5)(C).
B.
The complainant describes a hearsay report that the President, who is
not a member of the intelligence community, abused his authority or acted
unlawfully in connection with foreign diplomacy. In the ICIG’s view,
those allegations fall within the urgent-concern provision because the DNI
has operational responsibility to prevent election interference. 5 But even
5 The ICIG cites no statute or executive order charging the DNI with operational re-
sponsibility for preventing foreign election interference. The DNI serves as the head of
the intelligence community, the principal intelligence adviser to the President, and the
official responsible for supervising the National Intelligence Program, who sets general
objectives, priorities, and policies for the intelligence community. 50 U.S.C. §§ 3023(b),
3024(f )(1)(A), (f )(3)(A). The DNI thus surely has responsibility to coordinate the activi-
ties of the intelligence community and the provision of intelligence to the President and
other senior policymakers concerning foreign intelligence matters. But the complaint does
not suggest any misconduct by the DNI or any of his subordinates in connection with their
duties. Moreover, even if the DNI had general oversight responsibility for preventing
foreign election interference, the DNI’s oversight responsibilities do not appear to extend
to the President. By statute, the DNI exercises his authority subject to the direction of the
President, see id. §§ 3023(b), 3024(f )(1)(B)(i), ( j), and the statute’s definition of “intelli-
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“Urgent Concern” Determination by the IG of the Intelligence Community
if so, it does not follow that the alleged misconduct by the President
concerns “the funding, administration, or operation of an intelligence
activity within the responsibility and authority” of the DNI because the
allegations do not arise in connection with any such intelligence activity
at all. 50 U.S.C. § 3033(k)(5)(G)(i). The complaint therefore does not
state an “urgent concern.”
We begin with the words of the statute. Section 3033(k)(5)(G) does not
expressly define “intelligence activity,” but the meaning of the phrase
seems clear from context. The “intelligence activit[ies]” in question are
ones over which the DNI has “responsibility and authority,” which points
to intelligence-gathering, counterintelligence, and intelligence operations
undertaken by the intelligence community under the supervision of the
DNI. Id. The National Security Act of 1947 commonly refers to “intelli-
gence activities” as authorized activities undertaken by the intelligence
community. Section 3024(c)(4), for instance, requires the DNI to “ensure
the effective execution of the annual budget for intelligence and intelli-
gence-related activities.” Id. § 3024(c)(4). Section 3023(b)(3) authorizes
the DNI to “oversee and direct the implementation of the National Intelli-
gence Program,” id. § 3023(b)(3), which itself is defined to include “all
programs, projects, and activities of the intelligence community,” id.
§ 3003(6) (emphasis added). Section 3094 conditions the use of appropri-
ated funds “available to an intelligence agency . . . for an intelligence or
intelligence-related activity,” and defines an “intelligence agency” as
“any department, agency, or other entity of the United States involved in
intelligence or intelligence-related activities.” Id. § 3094(a), (e)(1) (em-
phasis added). Sections 3091 and 3092 similarly contemplate the report-
ing to Congress of “intelligence activities” carried out by the U.S. gov-
ernment. See id. §§ 3091(a), 3092(a). In addition, in establishing the
Office of the DNI, Congress was aware of the long-standing definition set
forth in Executive Order 12333, which defines “[i]ntelligence activities”
gence community” conspicuously omits the Executive Office of the President, see id. §
3003(4). The DNI’s charge to “ensure compliance with the Constitution and laws of the
United States” applies to overseeing the “Central Intelligence Agency” and “other ele-
ments of the intelligence community.” Id. § 3024(f )(4). Nevertheless, we need not reach
any definitive conclusion on these matters, because even if foreign election interference
would generally fall within the DNI’s purview, the complaint does not concern an “intel-
ligence activity within the responsibility and authority” of the DNI under section
3033(k)(5).
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to “mean[] all activities that elements of the Intelligence Community are
authorized to conduct pursuant to this order.” Exec. Order No. 12333,
§ 3.5(g) (Dec. 4, 1981) (as amended). The “urgent concern” statute thus
naturally addresses complaints arising out of the “funding, administration,
or operation” of activities carried out by the intelligence community.
This meaning of “intelligence activities” is also consistent with the
ICIG’s authorities under other portions of section 3033. Just as an “urgent
concern” must arise in connection with “an intelligence activity within the
responsibility and authority” of the DNI, the ICIG’s jurisdiction and report-
ing obligations are keyed to those “programs and activities within the re-
sponsibility and authority of ” the DNI. 50 U.S.C. § 3033(b)(1), (b)(3)(A),
(b)(4)(A), (d)(1), (e)(1), (e)(2), (g)(2)(A), (k)(1)(B)(vii), (k)(2)(A). That
language parallels the language that commonly defines the purview of
inspectors general. See IG Act § 4(a)(1), 5 U.S.C. app. (generally author-
izing inspectors general to conduct investigations “relating to the pro-
grams and operations” of the agency). Such language has been consist-
ently construed to permit inspectors general to oversee an agency’s
implementation of its statutory mission, but not to extend to performing
the agency’s mission itself. See Inspector General Authority to Conduct
Regulatory Investigations, 13 Op. O.L.C. 54, 58–67 (1989).
Consistent with that view, the D.C. Circuit concluded that the Depart-
ment of Transportation’s inspector general exceeded his authority when
he “involved himself in a routine agency investigation” as opposed to “an
investigation relating to abuse and mismanagement in the administration
of the DOT or an audit of agency enforcement procedures or policies.”
Truckers United for Safety v. Mead, 251 F.3d 183, 189–90 (D.C. Cir.
2001). The Fifth Circuit reached a similar conclusion regarding an inspec-
tor general’s authority to engage in regulatory compliance investigations,
expressly endorsing the approach taken by this Office’s 1989 opinion.
See Burlington N. R.R. Co. v. Office of Inspector General, 983 F.2d 631,
642–43 (5th Cir. 1993). Similarly here, the ICIG has the authority to
review the DNI’s exercise of his responsibility to coordinate and oversee
the activities of the intelligence community—including, for instance,
reviewing whether the DNI has appropriately discharged any authorities
concerning preventing foreign election interference. But the ICIG does
not himself have the authority to investigate election interference by
foreign actors, because such an investigation would not involve an activi-
ty or program of the intelligence community under the DNI’s supervision.
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“Urgent Concern” Determination by the IG of the Intelligence Community
We do not believe that the subjects of “urgent concern” reports to the
ICIG are broader than other matters that fall within the investigative and
reporting authority of the ICIG.
In establishing the office of the ICIG, Congress created an accountable
and independent investigator who, subject to the general supervision of
the DNI, would review the activities of members of the intelligence com-
munity. The ICIG is charged with “conduct[ing] independent investiga-
tions, inspections, audits, and reviews on programs and activities within
the responsibility and authority” of the DNI. 50 U.S.C. § 3033(b)(1). The
ICIG is also charged with overseeing and uncovering wrongdoing in the
operations of programs under the DNI’s supervision. But the ICIG’s
responsibility “to promote economy, efficiency, and effectiveness” in the
administration of such programs, and “to prevent and detect fraud and
abuse,” id. § 3033(b)(2), must necessarily concern the programs them-
selves. Although the DNI and the intelligence community collect intelli-
gence against foreign threats, the ICIG’s responsibility is to watch the
watchers in the performance of their duties, not to investigate and review
matters relating to the foreign intelligence threats themselves. 6
Throughout section 3033, the assumption, sometimes explicit and
sometimes tacit, is that the ICIG’s authority extends to the investigation
of U.S. government intelligence activities, not to those foreign threats that
are themselves the concerns of the intelligence community. Thus, the
ICIG has a statutory right of “access to any employee, or any employee
of a contractor, of any element of the intelligence community.” Id.
§ 3033(g)(2)(B). Similarly, the ICIG should inform the congressional
intelligence committees when an investigation “focuses on any current or
former intelligence community official who” holds certain high-ranking
positions, id. § 3033(k)(3)(A)(ii) (emphasis added), or when a matter
6 To the extent relevant, the legislative history and statutory findings confirm that the
provision relates only to problems within the intelligence community. In giving the ICIG
jurisdiction to investigate “intelligence activities” within the DNI’s purview, Congress
explained that it “believe[d] that an IC/IG with full statutory authorities and independence
can better ensure that the ODNI identifies problems and deficiencies within the Intelli-
gence Community.” H.R. Rep. No. 111-186, at 70–71 (2009) (emphasis added). Similarly,
in establishing the “urgent concern” procedures in the IG Act, Congress made clear that
the provision was designed to address “wrongdoing within the Intelligence Community.”
Intelligence Community Whistleblower Protection Act of 1998, Pub. L. No. 105-272,
tit. VII, § 701(b)(4), 112 Stat. 2396, 2413, 2414 (emphasis added).
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requires a report to the Department of Justice of “possible criminal con-
duct by [such] a current or former [intelligence-community] official,” id.
§ 3033(k)(3)(A)(iii). The ICIG’s reporting responsibilities, however, do
not concern officials outside the intelligence community, let alone the
President.
In this case, the conduct that is the subject of the complaint does not
relate to an “intelligence activity” under the DNI’s supervision. The
complainant alleges that the President made an inappropriate or potential-
ly unlawful request on a routine diplomatic call with a foreign leader.
But the President is not a member of the intelligence community, see
id. § 3003(4), and his communication with a foreign leader involved no
intelligence operation or other activity aimed at collecting or analyzing
foreign intelligence. To the extent that the complaint warrants further
review, that review falls outside section 3033(k)(5), which does not
charge the ICIG (let alone every intelligence-community employee) with
reporting on every serious allegation that may be found in a classified
document. To the contrary, where the ICIG learns of a credible allegation
of a potential criminal matter outside the intelligence community, the
ICIG should refer the matter to the Department of Justice, consistent with
28 U.S.C. § 535.
We recognize that conduct by individuals outside of the intelligence
community, or outside the government, can sometimes relate to “the
funding, administration, or operation of an intelligence activity.” 50
U.S.C. § 3033(k)(5)(G)(i). For instance, if an alleged violation of law
involves a non-agency party who conspired with a member of the intelli-
gence community or who perpetrated a fraud on an agency within the
DNI’s authority, that may well relate to “the funding, administration, or
operation of an intelligence activity” because it would directly impact
the operations or funding of the agency or its personnel. In 1990, then-
Acting Deputy Attorney General William Barr acknowledged similar
instances in which inspectors general could investigate “external parties.”
Letter for William M. Diefenderfer, Deputy Director, Office of Manage-
ment and Budget, from William P. Barr, Acting Deputy Attorney General,
at 2–3 (July 17, 1990). None of those circumstances, however, is present
here. The alleged conduct at issue concerns actions by the President
arising out of confidential diplomatic communications with a foreign
leader. Such matters simply do not relate to “the funding, administration,
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“Urgent Concern” Determination by the IG of the Intelligence Community
or operation of an intelligence activity within the responsibility and au-
thority” of the DNI. 50 U.S.C. § 3033(k)(5)(G)(i).
III.
For the reasons set forth above, we conclude that the complaint submit-
ted to the ICIG does not involve an “urgent concern” as defined in 50
U.S.C. § 3033(k)(5)(G). As a result, the statute does not require that the
DNI transmit the complaint to the intelligence committees. Consistent
with 28 U.S.C. § 535, however, the ICIG’s letter and the attached com-
plaint have been referred to the Criminal Division of the Department of
Justice for appropriate review.
STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel
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