The first step taken by the person behind what’s now history’s best-known whistleblower complaint, wasn’t to file a whistleblower complaint. First they went to the chief legal counsel of the CIA and report concerns about what they had learned. It was only after that action appeared to be generating no reaction, that the whistleblower-to-be contacted a House intelligence staffer designated as the community contact, and was notified about potential next steps. Because nothing happened at the CIA, it’s been assumed that, somehow, the counsel there didn’t find the information compelling. However, that turns out not to be the case.
As NBC News reported, CIA general counsel Courtney Simmons Elwood, who was appointed to the role by Donald Trump, did take action. She called the Department of Justice with what she intended to be a criminal referral. The call she made came after Elwood and other top CIA officials concluded that, based on what they had learned from the whistleblower, a potential crime had been committed. They expected the call to generate a criminal investigation.
It did not. Instead the DOJ simply … let it go. DOJ officials later claimed they were “unclear” that Elwood was making a criminal referral. However, the DOJ seems to have been the only one in doubt, as “multiple senior government officials appointed by Trump” immediately recognized that the actions reported by the whistleblower were “worthy of further inquiry.” Everyone else involved could see that the items at the center of the complaint were serious. Everyone expected the Department of Justice to pick the matter up and investigate. They did not.
This was weeks before the inspector general of the intelligence community passed the report along to acting DNI Joseph Maguire and Maguire contacted the Department of Justice with the full complaint. On that occasion the DOJ again refused to launch a criminal investigation on the basis that it was impossible to determine if Trump had violated the law solely on the claim that it was impossible to determine the value of getting a foreign nation to interfere in a U.S. election.
The reason put forward by the DOJ for refusing to take up the complaint was always ridiculous. The DOJ has pursued past cases of campaign violation over items such as endorsements and information—matters just as hard to value, and far less serious, then distorting foreign policy and extorting the cooperation of an allied state. But the word that the CIA contacted the DOJ early also makes something else clear: William Barr was involved from the beginning.
Elwood contacted the DOJ on August 14, and spoke in a conference call to both the top national security lawyer at the White House and the head of the Justice Department’s National Security Division. Following rules that she had to report such allegations if there was a reasonable basis to believe that a crime had been committed, Elwood made it clear that the allegations “merited examination by the DOJ.”
But following the conversation, Attorney General William Barr “was made aware” of the information coming from Elwood. After Barr became aware, DOJ officials said they were not following up on the allegations because they were not “a formal written complaint.” However, that’s not the system. Elwood followed the procedure by notifying the DOJ.
Even as Donald Trump and Republicans keep insisting that Adam Schiff somehow did something wrong because the whistleblower followed the rules by contacting a House Intelligence staffer before filing the formal complaint with the inspector general, the truth is that William Barr knew about the complaint far earlier. Barr was aware of the whistleblower and the allegations, before the whistleblower filed a complaint. Before they went to the House. At the very earliest stage.
The true narrative isn’t that the whistleblower went to the CIA’s top counsel and the CIA did nothing. The CIA did what it was supposed to do—contact the DOJ with the word that there were serious and reasonable beliefs that a crime had been committed. It was William Barr who did nothing.
Or actually, not nothing. Because obstruction is a long way from nothing.