The Pea Under the Shell

shell game

Opinion of the Office of Legal Counsel, Department of Justice, September 24, 2019

Philip Rotner, DNI Maguire, The President, and the Attorney General

The Office of Legal Counsel opinion runs to eleven pages of serious legalese. But it rests on a simple word trick which should be obvious to any competent lawyer.

The relevant statutory language is as follows:

 In this paragraph, the term “urgent concern” means any of the following:

(i) A serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information, but does not include differences of opinions concerning public policy matters.

The key is “relating to.” The DOJ opinion repeatedly paraphrases the statute, replacing “relating to” with “concerning” or “in connection with” or “involving.”

Anyone who spent several years of his life construing subpoenas and other legal document requests—and has done so with a view toward keeping his client and himself out of jail—knows that there is a big difference between “relating to,” on the one hand, and language such as “concerning” or “describing” or “referring to.” The former phrase–“relating to”–is much broader than the words the OLC opinion substitute, in paragraphing the statute.

Yesterday, DNI Maguire testified that foreign interference with our elections is the gravest national threat we face. Therefore, a communication soliciting foreign interference with our elections does indeed “relate to” “operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence.”

Moreover, the communication was one “involving classified information,” because, at the time the opinion was written, evidence of the communication was still classified.

And Apart From That

There is also the little matter of the Justice Department’s conflict of interest in construing a statutory term that is, at best, slightly ambiguous.