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.
[...]
[I]t has not been [previously] 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."
NBC
Think about it for a second, Berit. I think you DO understand the rationale.
On Aug. 14, [Elwood] 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.
How is that vague?
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.
So...it's not vague, it's just not written down? Is that a requirement?
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."
[...]
Justice Department officials said they decided there was no criminal case after determining that Trump didn't violate campaign finance law by asking the Ukrainian president to investigate his political rival, because such a request did not meet the test for a "thing of value" under the law.
Seriously? Why would he ask for it if it had no value to him?
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.
There IS that.
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.
Add Benczkowski's name to the conspirator's list. We've
heard of Mr. B before, a couple of times, and it
wasn't good then.
"They are not by any stretch of the imagination limited to the referral," Chuck Rosenberg, an NBC News contributor and a former U.S. attorney, said. "They have the authority — in fact, they have the obligation — to look more deeply and more broadly and bring whatever charges are appropriate."
Berger added, "When you get a criminal referral, you don't go into it saying, 'This is the criminal violation and now I'm going to see if the facts prove it.' You start with the facts and the evidence and then you see what potential crimes those facts support. It seems backwards to say, 'We are going to look at this just as a campaign finance violation and oops, we don't see it — case closed.'"
[...]
The Foreign Corrupt Practices Act, which prohibits bribery of foreign officials, may also have been implicated, she said.
[...]
Common Cause has filed a complaint with the Justice Department and the Federal Election Commission accusing Trump of violating campaign law.
It wouldn't have been difficult for the government to determine how much money Ukraine would have spent in an investigation of Joe Biden and his son, he said,
"That would give them a dollar amount to show that Trump solicited 'something of value,'" Ryan said.
And that's only the monetary value.
...but hey, do what you want...you will anyway.
