Kevin Johnson | USA TODAY

USA TODAY

WASHINGTON – At the time, the disclosure was offered almost as a footnote to the explosive contents of a phone call in which President Donald Trump pressed his Ukrainian counterpart to investigate political rival Joe Biden.

As a summary of the call was released by the White House last month, senior Justice Department officials, who spoke on the condition that they not be identified, said prosecutors had reviewed whether the president’s solicitation of Ukraine President Volodymyr Zelensky was a potential crime.

The review, done at the request of the inspector general of the intelligence community, was narrow.

MICHAEL REYNOLDS, EPA-EFE

It was based entirely on the written summary of the call, which even the White House indicated was imperfect. Authorities conducted no interviews to learn why a whistleblower took the extraordinary step of taking his concern to the inspector general for the nation's intelligence agencies.

And it took only a few weeks for prosecutors to conclude there was no violation of campaign finance law.

Yet in the month since that decision was made public, a fast-moving House impeachment inquiry and a separate criminal investigation raise serious questions about the Justice Department’s assessment of the president’s conduct.

"In hindsight, the decision by prosecutors was premature and ill-advised," Richard Ben-Veniste, one of the Watergate prosecutors, said. "The information provided by the whistleblower cried out for further inquiry."

Justice Department officials say Attorney General William Barr, whose assistance Trump offered to Zelensky, was not the one who decided to decline an investigation.

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But lawmakers and former prosecutors say his close relationship with Trump threatens the department's independence as the president faces his greatest threat yet.

Those suspicions are likely to deepen after news broke Thursday night that the Justice Department has shifted an internal examination into the origins of the Russia investigation – which Trump often disparages as a "witch hunt" – to a criminal matter.

Read the summary: President Trump's call with Ukraine president about Biden

House Intelligence Committee Chairman Adam Schiff, D-Calif., who is leading the impeachment inquiry, said the Justice Department’s decision not to launch an investigation based on the whistleblower’s complaint effectively forced Congress to look into the matter itself.

In just four weeks, House Democrats have elicited damning testimony from current and former administration officials that bolsters their central argument for removing Trump: that the White House dangled military aid and a meeting with the president in an effort to get Ukraine to investigate Biden and his son Hunter Biden.

“Unlike in past impeachment proceedings in which Congress had the benefit of an investigation conducted in secret by an independent prosecutor, we must conduct the initial investigation ourselves," Schiff said last week, referring to the Watergate investigators who pursued Richard Nixon and the Whitewater prosecutors who scrutinized Bill Clinton.

"This is the case," he said, "because the Department of Justice under Bill Barr expressly declined to investigate this matter after a criminal referral had been made."

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'I would like you to do us a favor'

It is illegal for a political candidate to solicit or receive anything of value from a foreign source. Justice officials said they decided not to move forward with a campaign finance inquiry because they concluded the president's request for an investigation had no quantifiable value. The conclusion, officials said, was rendered by Criminal Division chief Brian Benczkowski.

"The department's Criminal Division reviewed the official record of the call and determined, based on the facts and applicable law, that there was no campaign finance violation and no further action was warranted," the Justice Department said in a statement last month.

The department also concluded the whistleblower's complaint did not have to be shared with Congress, setting up a showdown between the two branches of government.

Since then, the whistleblower's complaint has been corroborated by closed-door testimony suggesting Trump and his personal attorney, Rudy Giuliani, had long worked to secure Ukraine not against Russian aggression, but as part of the president's reelection strategy.

Saul Loeb/AFP via Getty Images

"A number of questions needed answering, and relevant people interviewed," Ben-Veniste, the Watergate prosecutor, said. Such as: "Who was involved in speaking for President Trump in Ukraine prior to this call (with Zelensky), and whether the 'ask' the president was making had been considered by the State Department or our ambassador to the Ukraine."

Three House committees are asking those questions now. The marathon sessions have produced eye-opening testimony from a string of witnesses.

Last week, Gordon Sondland, the top U.S. diplomat in Europe, conceded that Trump had delegated Ukraine policy largely to Giuliani, rather than career State Department officials.

Tuesday, William Taylor, Trump's top diplomat in Ukraine, told lawmakers there was an understanding that the release of hundreds of millions of dollars in military aid from the U.S. was contingent on the Ukrainian government announcing publicly that it would investigate the Bidens.

Neither the former vice president nor his son have been accused of wrongdoing by the Ukrainian government.

AP, AP

Those back-channel efforts culminated in the July 25 telephone call between Trump and Zelensky. After the Ukrainian president said he wanted to buy more military equipment from the U.S., Trump shifted the conversation with this comment: "I would like you to do us a favor."

The message was clear, said Patrick Cotter, a former federal prosecutor.

“Anybody over the age of 12 knows that what the president was seeking was something of great personal value; it is very valuable to get opposition research on your opponent," Cotter said. "Ask any political consultant what they charge. In this case, multiply that by 1,000."

Just the FAQs, USA TODAY

Robert Ray, who served as an independent counsel in the Whitewater investigation of President Bill Clinton, defended the Justice Department's decision not to take up the inspector general's criminal referral.

"You can argue that anything the president does is potentially to his political benefit," Ray said. "It would be very difficult to turn that (Zelensky call) into some in-kind political contribution. It's a ridiculous argument."

Regardless of what the Justice Department concluded based on the phone call alone, "the testimony and text messages that are now out there is new evidence," Cotter said. "New evidence is always a valid reason to reconsider opening an investigation."

Asked whether the Justice Department is reconsidering the matter based on the new disclosures, an official referred to the department's initial statement stating that "no further action was warranted."

However, the official said the decision not to proceed with a campaign finance investigation would not prevent authorities from reviewing other Ukraine-related matters, if they warranted investigation.

The official declined to comment on whether any such reviews are underway.

'I am also going to have Attorney General Barr call'

The moment Trump hung up with Zelensky, he probably didn't expect even a summary of the call to become public. But when it was, the president thrust the Justice Department – and Barr – into a uniquely fraught position.

During the 30-minute conversation, Trump repeatedly offered the attorney general and Giuliani's help in launching an investigation of the Bidens. Trump invoked the attorney general by name or title four times.

"I will have Mr. Giuliani to give you a call, and I am also going to have Attorney General Barr call and we will get to the bottom of it," Trump said after falsely suggesting that former Vice President Biden had halted an investigation of a Ukrainian energy company while Hunter Biden served as a board member.

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The Justice Department maintains Barr knew nothing about Trump's entreaties until weeks later and didn't communicate with Ukrainian officials. Yet Trump's comments have stoked fresh questions about the attorney general's independence from the White House.

Those criticisms were first leveled earlier this year when Barr announced that no obstruction charges were warranted against the president based on special counsel Robert Mueller's investigation into Russian election interference.

House Judiciary Committee Chairman Jerry Nadler, D-N.Y., immediately called for Barr to recuse himself from future consideration of any Ukraine-related matters. That didn't happen.

Justice Department officials and Barr's supporters have scoffed at suggestions the attorney general is compromised. Earlier this month, federal agents arrested two Giuliani associates on campaign finance charges. The pair assisted Giuliani in his campaign to pressure Ukrainian officials to investigate Biden's family, though the charges aren't related to those efforts.

That investigation is being headed by Manhattan U.S. Attorney Geoffrey Berman, whose office has long enjoyed a measure of independence from Washington.

A Justice Department official said Barr was briefed on the inquiry shortly after he took over as attorney general in February. He was alerted before the men were arrested at Dulles International Airport as they boarded a flight to Europe with one-way tickets.

A public official has as much a duty not to recuse himself than to recuse himself. Michael Mukasey, a former attorney general during the George W. Bush administration

Michael Mukasey, a former attorney general during the George W. Bush administration, said Barr shouldn't be penalized for not knowing Trump mentioned him in the Zelensky call. He believes the Justice Department made the right call in not launching the campaign finance inquiry.

"There is no basis for recusal," Mukasey, a close ally of Barr, said. "It doesn't create an actual conflict because somebody (Trump) was hallucinating. That should be the end of it. A public official has as much a duty not to recuse himself than to recuse himself."

Bruce Udolf worked the Clinton Whitewater investigation as an associate independent counsel. He disagrees with Mukasey's conclusions.

"Justice's decision should come as no surprise," Udolf said. "This administration has sought to intimidate the FBI and tried to co-opt the Justice Department. The Justice Department should be doing what the Congress is doing now. It just doesn't pass the straight-face test."

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