On Wednesday, Georgetown law professors Neal Katyal and Joshua Geltzer penned an op-ed in The New York Times arguing that Attorney General William Barr and his officials should have referred the Ukraine whistleblower's campaign finance allegations to the Federal Election Commission — even if they personally believed the president and his subordinates had not committed a crime.
"In its handling of the investigation and a potential campaign-finance violation, the Department of Justice appears to have ignored a rule that a matter under investigation must be referred to the Federal Election Commission," wrote Katyal and Geltzer.
It is unlikely the FEC could have actively investigated the matter, because the commission is currently shut down for lack of quorum. But "Critically, if the department had followed the rule, the Ukraine affair would have been disclosed to the American public."
"Remember that Mr. Trump’s own intelligence community inspector general — a former federal prosecutor — determined that the whistle-blower complaint was an 'urgent concern,'" wrote Katyal and Geltzer. "Further, the complaint set out facts suggesting that Mr. Trump had indeed violated the federal statute that criminalizes soliciting any 'thing of value' from a foreign citizen in connection with an election. A thorough investigation seemed warranted."
This meant, under a memorandum of understanding agreed to by the DOJ, that the FEC had to be informed for an investigation, they wrote.
"Here’s the key part for our purpose: When information comes to the attention of the Justice Department indicating a 'probable violation' of the Federal Election Campaign Act, the document says, 'the department will apprise the commission of such information at the earliest opportunity,'" wrote Katyal and Geltzer. "Note the standard for when the Justice Department must notify the F.E.C.: when there's a 'probable violation,' a low bar compared with the standard for actually bringing a criminal prosecution that must be proven beyond a reasonable doubt."
"One indication that the memo’s dictates remain required protocol? Just six years ago, it was cited in a public memorandum written by the F.E.C.’s vice chairman at the time," they concluded. "His name? Mr. Trump’s own former White House counsel — Don McGahn."