Parsing definition of "urgent concern" under 50 U.S.C 3033?

Question

Can someone help validating my parsing of a legal definition of "urgent concern" in the cited section. If a complaint is not related to a intelligence activity, does it qualify as an intelligence whistleblower report?

In the news are "whistleblower" allegations claiming to be an "urgent matter" under 50 U.S.C. 3033 (k) (5). Included in that section is the following definition appears:

(G) 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.

(ii) A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration, or operation of an intelligence activity.

(iii)An action, including a personnel action described in section 2302(a)(2)(A) of title 5, constituting reprisal or threat of reprisal prohibited under subsection (g)(3)(B) of this section in response to an employee’s reporting an urgent concern in accordance with this paragraph.

The whistle-blower quotes the above definition incompletely. After reading the now-released complaint and related MEMCON, I can't see how it relates to an intelligence activity within the responsibility and authority of the DNI. In fact it seems to me a difference of opinions concerning public policy matters.

I have to wonder if the whistle-blower, ICIG and Speaker of the House misjudged the legal protections applicable to this report.

Answer 1

The first paragraph on the nature of the concern in the ICIG letter to McGuire clarifies what the alleged violation of the law is:

Here, the Complainant's Letter alleged, among other things, that the President of the United States, in a telephone call with Ukrainian President Volodymyr Zelenskyy on July 25, 2019, “sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid.” U.S. laws and regulations prohibit a foreign national, directly or indirectly, from making a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election. Similarly, U.S. laws and regulations prohibit a person from soliciting, accepting, or receiving such a contribution or donation from a foreign national, directly or indirectly, in connection with a Federal, State, or local election. Further, in the ICIG’s judgment, alleged conduct by a senior U.S. public official to seek foreign assistance to interfere in or influence a Federal election would constitute a “serious or flagrant problem [or] abuse” under 50 U.S.C. § 3033(k)(5)(G)(i), which would also potentially expose such a U.S. public official (or others acting in concert with the U.S. public official) to serious national security and counterintelligence risks with respect to foreign intelligence services aware of such alleged conduct.

That is, it is alleged that it is a violation of federal election law for a foreign national to aid a US election (by providing information, which might be of value).

The underlying statute is ambiguous. One reading is that the term refers to a

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

and also

A serious or flagrant problem, abuse, violation of law or Executive order

The alternative is to take the entire list and limit the scope of the violations etc. to those

within the responsibility and authority of the Director of National Intelligence involving classified information

The interpretive canon known as the "last antecedent rule" favor the narrowest scope possible the immiidately above phrase.

The law does not require a Supreme Court quality analysis of the underlying law: the proper interpretation of that statute is far from obvious, see here. Whether or not the last antecedent rule would be actually invoked in a final appeal is very hard to say, but generally the courts disfavor the supposition that any statute is ever written ambiguously (that still doesn't tell us what the scope of the last phrase is). The wording of the ICIG letter clearly indicates his interpretation of the scope of the DNI phrase, as not being limited to only intelligence activities within the responsibility and authority of the Director of National Intelligence involving classified information.

However, the ICIG letter also notes that

the Director of National Intelligence has responsibility and authority pursuant to federal law and Executive Orders to administer and operate programs and activities related to potential foreign interference in a United States election

Additionally, Executive Order 13848, Imposing Certain Sanctions in the Event of Foreign Influence in a United States Election declares that

the ability of persons ... outside the United States to interfere in or undermine public confidence in United States elections... constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States

putting the combination of foreign + elections within the scope of the DNI. The ICIG letter also reasons that

alleged conduct by a senior U.S. public official to seek foreign assistance to interfere in or influence a Federal election would constitute a “serious or flagrant problem [or] abuse” under 50 U.S.C. § 3033(k)(5)(G)(i), which would also potentially expose such a U.S. public official (or others acting in concert with the U.S. public official) to serious national security and counterintelligence risks with respect to foreign intelligence services aware of such alleged conduct.

Answer 2

The DOJ recently declassified and published a most of a previously document dated September 3rd, 2019: MEMORANDUM FOR JASON KLITENIC GENERAL COUNSEL, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE Re: "Urgent Concern" Determination by the Inspector General of the Intelligence Community. The document states:

In this case, the conduct that is the subject of the complaint does not relate to an "intelligence activity" under the DNI's supervision. The complainant alleges that the President made an inappropriate or potentially unlawful request on a routine diplomatic call with a foreign leader. But the President is not a member of the intelligence community, see id. § 3003(4), and his communication with the Ukrainian president involved no intelligence operation or other activity aimed at collecting or analyzing foreign intelligence. To the extent that the complaint warrants further review, that review falls outside section 3033(k)(5), which does not charge the ICIG (let alone every intelligence-community employee) with reporting on every serious allegation that may be found in a classified document. To the contrary, where the ICIG learns of a credible allegation of a potential criminal matter outside the intelligence community, the ICIG should refer the matter to the Department of Justice, consistent with 28 u.s.c. § 535.

In conclusion, it said:

For the reasons set forth above, we conclude that the complaint submitted to the ICIG does not involve an "urgent concern" as defined in 50 U.S.C. § 3033(k)(5)(G). As a result, the statute does not require that the DNI transmit the complaint to the intelligence committees. Consistent with 28 U.S.C. § 535, however, the ICIG's letter and the attached complaint have been referred to the Criminal Division of the Department of Justice for appropriate review.