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Q&A on Intelligence Community Whistleblower

Update, Sept. 26: The House intelligence committee released a redacted version of the whistleblower complaint on Sept. 26, and the White House released a memo of the call on Sept. 25. Our story has been updated to reflect some of the information contained in those documents.

A whistleblower on Aug. 12 filed a complaint with the inspector general of the intelligence community, who found the information credible and determined that under the law it should be forwarded to the congressional intelligence committees.

As first reported by the Wall Street Journal and other media outlets, the complaint alleges that President Donald Trump during a July phone call pressed Volodymyr Zelensky, the newly elected Ukrainian president, to investigate Hunter Biden — the son of former Vice President Joe Biden. Trump also confirmed media reports that he was withholding congressionally appropriated security assistance funding to Ukraine at the time of the call.

“In the course of my official duties, I have received information from multiple U.S. Government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election,” the whistleblower complaint reads. “This interference includes, among other things, pressuring a foreign country to investigate one of the President’s main domestic political rivals. The President’s personal lawyer, Mr. Rudolph Giuliani, is a central figure in this effort. Attorney General Barr appears to be involved as well.”

Trump denies doing anything inappropriate, describing the phone call as “absolutely perfect” and “beautiful,” while at the same time saying that he did talk to Zelensky about corruption. 

Here we present what we know and don’t know about the whistleblower complaint so far.

When did Trump speak with the president of Ukraine, and what was discussed?

The two leaders spoke on July 25. Trump called to congratulate Zelensky on his recent election victory. In a statement released that day, Ukraine’s office of the president said Trump expressed hope that Ukraine can “complete investigation of corruption cases, which inhibited the interaction between Ukraine and the USA.”

The Wall Street Journal reported that Trump “repeatedly pressured the president of Ukraine to investigate Joe Biden’s son, according to people familiar with the matter, urging Volodymyr Zelensky about eight times to work with [Trump’s personal attorney] Rudy Giuliani on a probe that could hamper Mr. Trump’s potential 2020 opponent.”

On Sept. 22, Trump told reporters that it was a “great conversation,” and seemingly confirmed that Biden’s name came up. “The conversation I had was largely congratulatory,” Trump said. “It was largely corruption — all of the corruption taking place. It was largely the fact that we don’t want our people, like Vice President Biden and his son, creating to the corruption already in the Ukraine.”

Ukrainian Foreign Minister Vadym Prystaiko denied that Trump used the congratulatory phone call to pressure Zelensky to investigate the Bidens. “I know what the conversation was about and I think there was no pressure,” Prystaiko said in an interview with the media outlet Hromadske, as reported by Reuters.

On Sept. 25, the White House released a memo of the call, which confirmed that Trump asked Zelensky to investigate the Bidens. The memo isn’t a verbatim transcript, but rather the notes taken by assigned staff. “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great,” the memo says Trump told Zelensky. “Biden went around bragging that he stopped the prosecution so if you can look into it … It sounds horrible to me.”

Zelensky responded that he will appoint a new prosecutor who “will look into the situation, specifically to the company that you mentioned in this issue.” Trump said he would have Giuliani and Attorney General William Barr call Zelensky.

(There is no evidence that “[Joe] Biden stopped the prosecution,” as Trump claimed; it is not true that “[Joe] Biden went around bragging that he stopped the prosecution.” The prosecutor who was fired was accused of failing to prosecute corruption cases. See our story “Trump Twists Facts on Biden and Ukraine” for more on this.)

Trump also asked for “a favor,” telling Zelensky he’d like him to look into CrowdStrike, a cybersecurity firm the Democratic National Committee hired after its server was hacked during the 2016 election. CrowdStrike determined that Russia was behind the cyberattack. Trump made a vague reference to “[t]he server, they say Ukraine has it,” according to the memo.

About a dozen White House officials listened to the call, and multiple officials told the whistleblower that they were “deeply disturbed by what had transpired in the phone call,” according to the whistleblower complaint.

“They told me that there was already a ‘discussion ongoing’ with White House lawyers about how to treat the call because of the likelihood, in the officials’ retelling, that they had witnessed the President abuse his office for personal gain,” the complaint said.

Did the Trump administration withhold U.S. security aid to Ukraine? Was there any connection between the aid and Ukraine’s willingness to investigate Hunter and/or Joe Biden?

On Sept. 23, the Washington Post reported, based on three anonymous “senior administration officials,” that Trump ordered Mick Mulvaney, the White House acting chief of staff, to withhold the funding in mid-July, about a week before the president’s phone call with Zelensky.

The whistleblower said, “On 18 July, an Office of Management and Budget (OMB) official informed Departments and Agencies that the President ‘earlier that month’ had issued instructions to suspend all U.S. security assistance to Ukraine.”

Democrats have accused the president of misusing the power of his office. “The allegations are that the president used the power of his office for partisan political purposes, jeopardizing the national security of the United States by withholding aid to Ukraine, one of our key, strategic partners,” Sen. Ben Cardin said on “Fox News Sunday.”

The administration released the funds on Sept. 11, amid bipartisan pressure from Congress and less than three weeks before the end of the fiscal year. But there’s no evidence of a connection between the delay in funding and any investigation of the Bidens.

When asked on Sept. 23 if he told Ukrainian President Zelensky that the money was tied to an agreement to investigate, Trump said, “No, I didn’t.”

Trump confirmed that he had withheld the funds, about $391 million, saying he did so because he wanted European countries to contribute more to Ukraine. On Sept. 24, Trump was asked about the Post story that Trump ordered Mulvaney to withhold the funding prior to the July 25 phone call with Zelensky. “I’d withhold again and I’ll continue to withhold until such time as Europe and other nations contribute to Ukraine because they’re not doing it,” Trump said.

Reporter, Sept. 24: Why did you block aid a week before your call with the Ukrainian president?

Trump: Because very important, very important, I want other countries to put up money. I think it’s unfair that we put up the money. Then people called me, and they said, “Oh let it go,” and I let it go. But we paid the money, the money is paid. But very importantly, Germany, France, other countries should put up money.

(European countries do contribute aid to Ukraine. See our story “Trump Wrong on European Aid to Ukraine” for more.)

Republican Sen. Rob Portman, for one, said he spoke with Trump the evening of Sept. 11, asking the president to release the security funding for Ukraine. Portman said in a Sept. 12 tweet that he supported Trump’s “position that our European allies can, & must, do more to support #Ukraine.”

The freeze on $250 million in military aid was first reported by Politico on Aug. 28. An aide to Sen. Dick Durbin, the ranking Democrat on the subcommittee on defense appropriations, told us that the senator had received notices from the Defense Department in February and May that it “had a plan to spend all of the aid to Ukraine,” adding, “We don’t typically make these notifications public.”

The Defense Department confirmed on Aug. 29 that there was a hold on the funding when Durbin’s office inquired, the aide said.

Citing the media reports, a bipartisan group of senators sent a Sept. 3 letter to Mulvaney, who also serves as Office of Management and Budget director, urging him to release the appropriated money. “We have worked hard in a bi-partisan manner in the Senate to provide funding for a security assistance program for Ukraine that is effective, transparent and fiscally responsible. This funding is crucial to the long term stability of Ukraine and has the continued backing and approval of the U.S. Congress which appropriated these funds,” said the letter from Democratic Sens. Durbin, Jeanne Shaheen and Richard Blumenthal, and Republican Sens. Portman and Ron Johnson.

The day before, on Sept. 2, in a joint press conference with Polish President Andrzej Duda, Vice President Mike Pence was asked about the freeze on funding and if there was a connection to “efforts, including by [Trump’s personal attorney] Rudy Giuliani, to try to dig up dirt on the Biden family.” Pence said he didn’t discuss Joe Biden in a meeting the day before with Ukrainian President Zelensky. He said, “We discussed America’s support for Ukraine and the upcoming decision the president will make on the latest tranche of financial support in great detail.”

Pence cited the administration’s “great concerns about issues of corruption” in Ukraine. “I mean, to invest additional taxpayer in Ukraine, the president wants to be assured that those resources are truly making their way to the kind of investments that will contribute to security and stability in Ukraine,” he said.

The vice president also said the administration wanted European countries to contribute more money to Ukraine. “I called on [Zelensky] to work with us to engage our European partners to participate at a greater level in Ukraine.”

The release of the funding, which included $250 million Congress had appropriated for the Ukraine Security Assistance Initiative for fiscal year 2019 and $141.5 million in security assistance through the State Department, occurred the night before the Senate Committee on Appropriations was set to consider an amendment to force the administration to release fiscal 2020 aid to Ukraine by tying it to $5 billion in Defense Department funds. Republican Sen. Lindsey Graham told the committee at the Sept. 12 hearing that the funds were released because of that amendment, proposed by Durbin. “So why was it released? Because of your amendment. That’s why it was released because I was going to vote for it. So I think they’ve got the message,” Graham said.

“They waited with barely 2 weeks left in this fiscal year,” Durbin said at the hearing. “They finally released it. I take Sen. Graham’s statement on its face. I think the administration was embarrassed when they saw that we were going to … debate it here today and they released them last night.”

Republican Sen. Lankford gave another reason for the funding delay, saying that Zelensky — a comedian who took office in May — was “unknown” and “it was entirely reasonable that the United States spend a couple of months getting to know him.”

During the Sept. 12 Senate appropriations hearing, Durbin withdrew his amendment related to the 2020 funding because other committee members, including Republicans, agreed there was bipartisan consensus on finding another way to make sure the money was spent as appropriated, besides threatening to withhold $5 billing in DoD funding.

On Sept. 13, the Durbin aide told us, the Defense Department said up to $30 million of the 2019 funding was “at risk of expiring/being unspent,” because the funds were released so late in the fiscal year.

The House passed a stopgag spending bill on Sept. 19 that would allow the 2019 Ukraine funding to be spent beyond the end of this fiscal year. That bill will now be considered by the Senate.

The Ukraine funding was also released two days after House Democrats announced investigations into whether Trump and Giuliani tried to pressure Ukraine into conducting “politically-motivated investigations under the guise of anti-corruption activity.”

Trump told reporters on Sept. 23 that he didn’t tell Zelensky in the July 25 phone call that “‘You have do this or I’m not going to give you aid.’ I wouldn’t do that. I wouldn’t do that. … I put no pressure on them whatsoever. I could have. I think it would probably, possibly, have been okay if I did. But I didn’t.”

The White House’s memo of the call doesn’t include any explicit threat from Trump to withhold U.S. aid to Ukraine. Trump did talk generally about U.S. aid, saying, “I will say that we do a lot for Ukraine. We spend a lot of effort and a lot of time. Much more than the European countries are doing and they should be helping you more than they are,” according to the memo, which is not a verbatim transcript. Trump also said, “[T]he United States has been very very good to Ukraine. I wouldn’t say that it’s reciprocal necessarily because things are happening that are not good but the United States has been very very good to Ukraine.”

After Zelensky responded, saying “Yes you are absolutely right” and that he had spoken to German and French leaders about doing more on “sanctions,” Trump asked for “a favor” — that Zelensky look into CrowdStrike, the cybersecurity firm hired by the DNC after its computer network was hacked. “Whatever you can do, it’s very important that you do it if that’s possible,” the president said.

During the call, Trump also asked Zelensky to look into the Bidens.

When did the whistleblower file a complaint, and how does the process work?

A complaint was filed on Aug. 12 with Michael Atkinson, the inspector general of the intelligence community, under the Intelligence Community Whistleblower Protection Act of 1998.

The law requires the IG to determine within 14 days whether the complaint is credible and a matter of “urgent concern.” The law defines an “urgent concern” as, among other things, “a serious or flagrant problem, abuse, violation of the law of Executive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information.”

If the inspector general finds that the complaint is credible, he is required to report that information to the director of national intelligence, who then has seven days to relay the complaint to the House and Senate intelligence committees.

According to the website of the director of national intelligence, lawful whistleblowing occurs when an employee, contractor or military member within the intelligence community reports wrongdoing to certain authorized individuals.

Wrongdoing, the site says, is defined as “a violation of law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.” The site also identifies five individuals who qualify as an authorized recipient, including “a government supervisor in the employee’s chain of command” and the intelligence community inspector general.

“Once that right information has been given to the right people, the whistleblower has made a Protected Disclosure and is afforded whistleblower protections,” which also are explained on the site.

In the event that the inspector general does not report the issue, the law states that the employee, by notifying and then obtaining guidance from the director of national intelligence, can take the complaint directly to Congress.

In addition, the Inspector General Act of 1978 states that the IG “shall not … disclose the identity of the employee” who reports a complaint or other information “without the consent of the employee, unless the Inspector General determines such disclosure is unavoidable during the course of the investigation.”

When did this particular complaint become public?

On Sept. 13, about a month after the complaint was filed, Democratic Rep. Adam Schiff, the chairman of the House Permanent Select Committee on Intelligence, issued a press release announcing he had “issued a subpoena to the Acting Director of National Intelligence (DNI) Joseph Maguire to compel the production of a whistleblower complaint.”

Schiff later published the letter he said the committee received on Sept. 9 from Atkinson, the inspector general, notifying it that the director of national intelligence was withholding the complaint.

“In an unprecedented departure from past practice, you have not transmitted the disclosure to the Committee, nor have you notified the Committee of the fact of the disclosure or your decision not to transmit it the Committee,” Schiff wrote in a Sept. 10 letter to Maguire. “Instead, in a manner neither permitted nor contemplated under the statute, you have taken the extraordinary step of overruling the independent determination of the ICIG and preventing the disclosure from reaching the Committee.”

In the Sept. 9 letter, Atkinson told Schiff that it was his understanding that Maguire “has determined that he is not required to transmit my determination of a credible urgent concern or any of the Complainant’s information to the congressional intelligence committees” because Maguire did not agree that the allegations met the law’s definition of an “urgent concern.”

In a follow-up letter to Schiff on Sept. 17, Atkinson noted that he had received a letter on Sept. 13 from Jason Klitenic, general counsel for the director of national intelligence, stating that, after consulting with the Department of Justice, Maguire determined “‘that no statute requires disclosure of the complaint to the intelligence communities’ because ‘the disclosure in this case did not concern allegations of conduct by a member of the Intelligence Community or involve an intelligence activity under the DNI’s supervision.'”

“The Acting DNI and I are at an impasse over this issue,” Atkinson wrote in the Sept. 17 letter. He also said it appeared Maguire “has no present intention of providing direction to the Complainant, through me” on how the person can contact the congressional intelligence committees directly ‘in accordance with the appropriate security practices.'”

Then, on Sept. 18, the Washington Post, citing two unnamed former U.S. officials, first reported that the complaint that was filed “involves President Trump’s communications with a foreign leader,” who was not identified.

“Trump’s interaction with the foreign leader included a ‘promise’ that was regarded as so troubling that it prompted an official in the U.S. intelligence community to file a formal whistleblower complaint with the inspector general for the intelligence community, said the former officials,” the Post said.

The House intelligence committee released a redacted version of the whistleblower complaint on Sept. 26, the same day that Maguire publicly testified on the matter before the committee. Maguire said that he believed the conversation between Trump and Zelensky was subject to executive privilege, and he didn’t have the authority to waive that privilege by giving the complaint to the intelligence committee. He also said he followed the direction of the Department of Justice’s Office of Legal Counsel, which said the matter did not meet the definition of “urgent concern” because it concerns “conduct by someone outside the Intelligence Community unrelated to the funding, administration, or operation of an intelligence activity under my supervision.”

Who is the whistleblower, and is this person “partisan,” as Trump has claimed?

At this point, we don’t know the name of the whistleblower. The law states that the inspector general “shall not … disclose the identity of the employee without the consent of the employee, unless the Inspector General determines such disclosure is unavoidable during the course of the investigation.”

Yet, the president has described the person as “a partisan whistleblower” in remarks that he made on Sept. 20.

“I don’t know the identity of the whistleblower,” Trump said. “I just hear it’s a partisan person, meaning it comes out from another party. But I don’t have any idea.”

We do know, however, that the inspector general, who deemed the complaint credible, is a Trump appointee. On Nov. 2, 2017, Trump nominated Atkinson, who worked for 15 years in the Department of Justice, and the Senate approved the nomination without objection by voice vote on May 14, 2018.

Schiff said in a Sept. 24 tweet that the whistleblower could testify before the House intelligence committee “as soon as this week.”

“We have been informed by the whistleblower’s counsel that their client would like to speak to our committee and has requested guidance from the Acting DNI as to how to do so,” Schiff said.

A Justice Department memo dated Sept. 24 said, “Although the ICIG’s preliminary review found ‘some indicia of an arguable political bias on the part of the Complainant in favor of a rival political candidate,’ the ICIG concluded that the complaint’s allegations nonetheless appeared credible.”

The whistleblower describes him or herself as a “non-White House official” and “not a direct witness to most of the events described.” Rather, the whistleblower says he or she learned about the events from “multiple U.S. Government officials,” including White House officials, and that the information in the complaint “was relayed to me in the course of official interagency business. It is routine for U.S. officials with responsibility for a particular regional or functional portfolio to share such information with one another in order to inform policymaking and analysis.”

Democrats accuse Trump of wrongdoing. Did he do anything illegal? 

The facts about this situation are still unfolding, so it’s too early to say whether or not the president’s actions may have broken any laws.

But if Trump had conversations with the president of Ukraine and said or implied that Ukraine would get the military aid when it investigated Joe or Hunter Biden, legal experts say the president could very well have run afoul of the law.

“Clearly, one of the most popular statutes used federally for public corruption, Title 18 USC 201(B), talks about a public official directly or indirectly demanding, seeking, receiving, accepting or agreeing to receive anything of value,” Frank Figliuzzi, a former FBI assistant director for counterintelligence, said on the Talking Feds podcast on Sept. 23. “Now that would be a Ukrainian investigation of Biden, in return for [Trump’s] official act. And that could be granting Ukraine half a billion dollars in military aid. That is very, very arguably a federal violation.”

Whether damaging information against a political opponent could be considered a “thing of value” was also an issue in the Trump Tower meeting on June 9, 2016, between Donald Trump Jr. and Russians purporting to provide dirt on Hillary Clinton from the Russian government. The issue was discussed in length in the Mueller report (see page 186).

Mueller Report, March 2019: A campaign can be assisted not only by the provision of funds, but also by the provision of derogatory information about an opponent. Political campaigns frequently conduct and pay for opposition research. A foreign entity that engaged in such research and provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value. At the same time, no judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law. … Those questions could be especially difficult where the information consisted simply of the recounting of historically accurate facts. It is uncertain how courts would resolve those issues.

Michael Kang, a law professor at Northwestern University, said the cases are similar, though it might be more difficult to establish that Trump’s conversation with the Ukrainian president was “a solicitation of an in-kind contribution.”

“I would guess that if one thought the Trump Tower meeting constituted an illegal solicitation, then one would probably think a similar thing about Trump’s phone call with the president of Ukraine,” Kang told us via email. “In both cases, it is clear that the thing solicited is valuable, but it’s tricky whether to characterize the relevant conversation as a solicitation of an in-kind contribution because the thing sought in both cases is complicated to monetize and not the usual sort of thing solicited by US campaigns. Still, I think the phone conversation is very troubling, particularly coming after a formal investigation of the Trump Tower meeting.”

Kang said that a “difference between the two situations concerns whether this conversation is a solicitation in connection with a US election. My thought would be probably yes (clear enough from the circumstances what Trump’s motives were), but the argument from Trump’s lawyers would be that the conversation dealt with inter-government affairs and didn’t reference the election or campaign (as far as reported to this point). It’s hard to evaluate without knowing more detail about the phone conversation, but remember that the setup for the Trump Tower meeting was explicit on this score. What’s more, it’s unclear from the reporting thus far what exactly Trump asked for — whether it’s firing of a prosecutor, “dirt” on the Bidens out of an investigation, and/or more aggressive prosecution of Hunter Biden. I suppose all would be valuable to Trump’s campaign. However, to the degree that the connection between the ask and US election is fuzzy, it’s a bit more work to establish the connection when the ask strays further from the usual types of things (like oppo research, polling data, money, etc.) that campaigns regularly purchase and obtain.”

Kang added that given Trump’s experience with the Trump Tower meeting, it would be hard for Trump to argue an ignorance of the law.

“I think one aspect that is much clearer this time around is Trump’s willfulness,” Kang said. “By this time, I agree that it’s safe to impute knowledge to Trump of the illegality of soliciting an in-kind contribution.  Remember that this seemed less clear for the Trump Tower meeting.”

David Sklansky, who teaches criminal law at Stanford University, told us via email that it’s “hard to say [whether Trump may have violated the law] without knowing all the facts, of course. If Trump said he would hold up aid to Ukraine unless they investigated Vice President Biden and his son, I think most courts would say that an investigation of a political opponent is a ‘thing of value,’ which would make Trump’s request an illegal solicitation of a bribe.”

“But I think focusing on the federal criminal code in this context is a mistake,” Sklansky said. “The real question is whether it constitutes an abuse of office — and therefore an impeachable ‘high crime or misdemeanor’ — to use the power of the presidency to pressure a foreign government to investigate a political opponent. And it is hard for me to see how anyone could honestly think that it doesn’t.”

In an op-ed for NBC News, Leah Litman, assistant professor of law at the University of Michigan Law School, also makes an argument for impeachment.

“The Constitution provides for impeachment in cases of ‘treason, bribery or other high crimes and misdemeanors,'” Litman writes. “Trump’s alleged attempt to strong-arm Ukraine into smearing a political opponent fits well within this framework. Using the office of the president for personal political benefit comports with both the standard understandings of bribery and the broader category of high crimes and misdemeanors.”

In addition to bribery laws, legal scholars told the Washington Post that it is possible Trump may have violated laws that bar Americans from seeking to improperly influence foreign officials or laws that prohibit foreign involvement in U.S. elections.

Trump says he did not hold up the aid to Ukraine in order to pressure the country to investigate the Bidens, but rather because he wanted other European countries to contribute money instead.

House Speaker Nancy Pelosi said there doesn’t need to be a “quid pro quo in the conversation.” She said at the Atlantic Festival on Sept. 24: “If the president brings up, he wants them to investigate something of his political opponent, that is self-evident that it is not right. We don’t ask foreign governments to help us in our elections.”

Pelosi later announced the House was pursuing an official impeachment inquiry.

Pelosi, Sept. 24: This week, the president has admitted to asking the president of Ukraine to take actions which would benefit him politically. The actions of the Trump presidency revealed dishonorable fact of the president’s betrayal of his oath of office, betrayal of our national security, and betrayal of the integrity of our elections. Therefore, today I’m announcing the House of Representatives is moving forward with an official impeachment inquiry. … The president must be held accountable. No one is above the law.

Why does Trump want Ukraine to investigate Joe and Hunter Biden?

The president, without evidence, has claimed Joe Biden, as vice president, threatened to withhold “billions of dollars to Ukraine” in 2016 unless it removed the prosecutor general who “was prosecuting” Hunter Biden. 

Yuriy Lutsenko, Ukraine’s then-prosecutor general, told Bloomberg News in May that Hunter Biden — who was a board member for Burisma, a gas company in Ukraine, from 2014 to 2019 — wasn’t under investigation.

“Hunter Biden did not violate any Ukrainian laws — at least as of now, we do not see any wrongdoing,” Lutsenko, who resigned in August, told Bloomberg. Lutsenko said a corruption investigation into leaders of Ukrainian gas companies concerned a potential money-laundering transaction that had occurred before Hunter Biden joined the board. In 2017, Burisma announced that “all legal proceedings and pending criminal allegations” against the “operating companies of Burisma Group have been closed.”

It is true, however, that Joe Biden in 2016 threatened to withhold money from Ukraine if it didn’t fire its prosecutor general, Viktor Shokin. But the U.S. was not alone in pressuring Ukraine to remove Shokin, who was widely viewed as ineffective at prosecuting corruption. Around the same time, International Monetary Fund Managing Director Christine Lagarde threatened to withhold $40 billion unless Ukraine undertook “a substantial new effort” to fight corruption.  

For more on this, please see our item “Trump Twists Facts on Biden and Ukraine.”