STEVE INSKEEP, HOST:
How serious are the legal issues raised by President Trump's phone call to Ukraine's president? There is the question of the call itself, and there's also the question of how much we learn about it. The Office of the Director of National Intelligence resisted providing information to Congress, and until yesterday, that resistance seemed to have contributed to a move toward an impeachment inquiry in the House of Representatives. Now the acting director of National Intelligence, Joseph Maguire, testifies before Congress today. He has fiercely defended his role, saying he resisted giving up information on the advice of his office's top lawyer.
Robert Litt knows what it's like to be that lawyer. He served as general counsel to the Office of the Director of National Intelligence throughout most of the Obama administration, and he's in our studios. Good morning, sir.
ROBERT LITT: Good morning.
INSKEEP: I just want to review this. So the acting director of National Intelligence receives a complaint through the inspector general of that agency, a complaint about the president asking a foreign leader for dirt on a political opponent. Trump asked about Biden, asked the Ukrainian president, talked to Trump's personal lawyer and the attorney general of the United States, Bill Barr. This is what Joseph Maguire learns. Was he required to just turn that over to Congress, which he didn't do initially?
LITT: Well, there's some debate about that. The Congress takes a position that the statute says the DNI shall turn it over. But both President Clinton, when he signed the law in question, and President Obama, when he signed related legislation, took the position that this statute can't trump the president's ability to control the dissemination of classified information. And in this case, the Department of Justice's Office of Legal Counsel said this particular complaint, because it didn't involve intelligence activities, doesn't fall within the statute requiring it to be turned over.
INSKEEP: It sounds like you have some sympathy for the judgment that Maguire made for quite some time not to turn it over. And yet, doesn't the law say that the inspector general who got the whistleblower campaign - complaint, isn't he the guy who gets to decide this?
LITT: Well, that's an open question. I think that it was perfectly reasonable of Maguire, when he got this complaint, to seek outside guidance. And once the Office of Legal Counsel renders an opinion as to what a statute means, that opinion is binding on the executive branch. It's not binding on the rest of the world, but the - an executive branch official has to follow the legal judgment of the Office of Legal Counsel. I suspect that Maguire would have been very happy to turn this over, but he was directed essentially not to.
INSKEEP: But then something else happened in the last couple of days. It became apparent how much trouble this was causing for the president of the United States. And suddenly, it was OK to release the notes of the phone call, and it's OK to hand over the whistleblower complaint. Doesn't that acknowledge there really was no objection to begin with?
LITT: No, because there's a difference between whether the statute requires you to turn it over and whether you can turn it over. And so it was perfectly consistent for the Department of Justice to say, this particular statute doesn't require you to turn the complaint over, but then for the president to determine, I want you to turn it over anyway.
INSKEEP: So the Department of Justice was just doing what the president wanted and saying, no, as long as they could get away with it.
LITT: Well, that's something that we don't know because we don't have insight into those communications.
INSKEEP: We do have some insight into this, however. The complaint was referred to the Department of Justice because there's this phone call. There's the president. And again, this is the White House transcript. There's no doubt about these facts. The president says, I would like you to do us a favor, and asks for political dirt on Joe Biden and nothing else. Well, a couple of other conspiracy theories he wants investigated - asks for political dirt from the president of Ukraine. The Department of Justice considers the question, is that a campaign contribution from a foreign power? - which would be illegal. And they decide, no, doesn't really qualify as that.
But here's my question about that. William Barr, the attorney general of the United States, is discussed in the phone call. He seems to be part of this story somehow. Was it appropriate for the Department of Justice to make that judgment when the attorney general of the United States is somehow part of this case?
LITT: Well, I don't think it's fair to say that the attorney general is part of the case in the sense that it would require his recusal. His name was thrown about by the president, but the Department of Justice has denied that Barr was ever contacted about this or ever did anything about it. And personally, I don't think that the mere fact that his name was mentioned matters.
Of course, it's a little odd that the Department of Justice looked at this at all since the attorney general has taken the position that the president can't even be investigated for criminal activity, let alone indicted. And I think that the department's view of this was very narrow by focusing only on the possibility of a campaign finance violation and not on other possibilities that leap out from this transcript such as extortion or bribery.
INSKEEP: Let's lay out those other possibilities. You - can you expand on those two words? What are the laws here that could have been broken?
LITT: Well, I think if you change the facts slightly and imagine somebody who has a huge medical debt and goes to his local loan shark and says, I need to borrow $100,000, and the loan shark responds by saying, there's a favor I'd like you to do for me, though, I don't think anybody would have any problem viewing that as an extortionate request. The person who's making - who's asking for the money knows that this is a quid pro quo. And I think that the department, by limiting its analysis to a campaign finance violation, sort of missed the forest for the trees here.
INSKEEP: So you are saying that this does potentially meet the requirements for extortion, and no one actually has to use the Latin phrase quid pro quo for there to be one?
LITT: That's right. As long as there's a clear understanding between the parties of what's going on.
INSKEEP: And that's not in doubt because of the timeline here, right? Because the U.S. was suspending military aid to Ukraine, and, in fact, they were discussing - the president of Ukraine was discussing his desire for U.S. military aid seconds, perhaps, before the president said, I'd like you to do me a favor, though.
LITT: Yeah, I wouldn't go so far as to say there's no doubt. But certainly, I think a responsible prosecutor would view this as sufficient to inquire further.
INSKEEP: Does it trouble you as a national security professional that the president's personal lawyer would be part of this, that he would be seeking dirt in Ukraine and that the president of the United States, in an official phone call, would be asking another official from another country to talk to his personal lawyer?
LITT: I certainly think it's preferable for diplomatic communications to take place through diplomatic channels. And I think that the president's use of his personal lawyer simply emphasizes that this is a matter where the president is pursuing his personal interests rather than the interests of the nation.
INSKEEP: Is that fine? I mean, I can imagine the president saying, I have absolute authority to do that. There's no law that explicitly prohibits me from asking for political dirt from the president of Ukraine.
LITT: Well, I think you can not only imagine the president doing that. I think the president has effectively said that.
INSKEEP: He said it was a perfect phone call. Yes.
LITT: Yeah. And - but I don't think very many people would agree that the reason Donald Trump was elected president of the United States was to pursue his own personal financial and political interests.
INSKEEP: If you had an opportunity to put a question to Joseph Maguire, the Director of National Intelligence who'll be questioned today, what do you want to know?
LITT: At this point in the situation where the transcript has been released and we understand the whistleblower complaint may be released, what I would ask Joseph Maguire is for a firm commitment that whoever this whistleblower is, there will be absolutely no retaliation against him or her. We've seen the president and his allies seek to cast doubt on the motives of this whistleblower. I think it's critical that whoever this person is has played absolutely by the rules, done everything the way it's supposed to be done. And people in the intelligence community need to understand that if they follow the rules and blow the whistle, they will be protected from any retaliation.
INSKEEP: Mr. Litt, thanks so much for coming by - enjoyed it.
LITT: Thanks for having me.
INSKEEP: Robert Litt is former general counsel of the Office of the Director of National Intelligence. Transcript provided by NPR, Copyright NPR.