About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

Letter from Horowitz and Lerner to S. Engel re: CIGIE Response to OLC Opinion on Whistleblower Complaint Whistleblower Complaint on Ukraine (Kelly Smith, comp.) 1 (10/22/2019)

handle is hein.presidents/usgvtwht0099 and id is 1 raw text is: 

                               Council   of the
                               INSPECTORS GENERAL
                               on  INTEGRITY and EFFICIENCY

October 22, 2019


Honorable Steven A. Engel
Assistant Attorney General
Office of Legal Counsel
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530


Dear Assistant Attorney General Engel:

Thank you for your interest in the views of the Inspector General community on the concerns
raised by the Inspector General of the Intelligence Community (ICIG) in response to the Office
of Legal Counsel's (OLC) September 3, 2019 Memorandum for the Office of the Director of
National Intelligence (ODNI). That memorandum effectively overruled the determination by the
ICIG regarding an urgent concern complaint under the Intelligence Community Whistleblower
Protection Act (ICWPA) that the ICIG concluded appeared credible and therefore needed to be
transmitted to Congress. This letter from the Council of the Inspectors General on Integrity and
Efficiency, on behalf of the undersigned federal Inspectors General (IG), expresses our support
for the position advanced by the ICIG and our concern that the OLC opinion, if not withdrawn or
modified, could seriously undermine the critical role whistleblowers play in coming forward to
report waste, fraud, abuse, and misconduct across the federal government. Further, as
addressed in detail below, OLC's interpretation regarding the ICWPA procedure in question,
which mirrors the procedure that Congress included in Section 5(d) of the Inspector General Act
of 1978 (IG Act), has the potential to undermine IG independence across the federal
government.

As an initial matter, we find the arguments and concerns raised by the ICIG in his September 17,
2019 response to the OLC memorandum  compelling. OLC concluded that the foreign election
interference alleged by the whistleblower was not an urgent concern within the meaning of
the ICWPA because it did not concern the funding, administration, or operation of an
intelligence activity under the authority of the DNI. In his response, by describing and citing to
the DNI's relevant legal authorities, the ICIG showed that the DNI has a broad legal mandate to
address intelligence matters related to national security, as well as the specific responsibility to
assess instances of possible foreign interference in United States elections and identify, to the
maximum   extent possible, the methods used and persons and foreign governments involved in
the interference. These responsibilities support the ICIG's conclusion that the protection of
federal elections from foreign interference is squarely within the DNI's operations. The legal
authorities cited in his letter also support the ICIG's determination that the whistleblower
raised a claim of a serious or flagrant problem that relates to an intelligence activity within the
DNI's jurisdiction. It surely cannot be the case that the DNI has responsibilities related to

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most