The Whistleblower’s Complaint

John Allen. The Impeachment of President Donald Trump. Reference Point Press, 2021.

In his job as inspector general for the US intelligence community, Michael Atkinson was used to handling the most sensitive matters. He looked into possible violations of laws, rules, and regulations related to national intelligence. On August 26, 2019, he weighed in on a complaint by an anonymous whistleblower, one he realized could be fatal to the presidency of Donald Trump. In a letter to Joseph Maguire, the acting Director of National Intelligence (DNI), Atkinson expressed his belief that the complaint was an “urgent concern” that appeared to be credible. He noted that, under the law, Maguire had one week to forward the complaint to lawmakers in the House.

Despite Atkinson’s recommendation, by September 9 Maguire still had not contacted Congress. Maguire disagreed that the allegations rose to the level of an urgent concern. It was left to Atkinson to notify the House intelligence committee about the whistleblower’s complaint. Three House committees immediately announced a probe into Trump’s alleged efforts to pressure Ukraine for his political benefit, and thus began the months-long investigation that would lead to Trump’s impeachment.

A Credible Allegation

By the time Congress received Atkinson’s letter, a few facts about Trump’s phone call had already been made public. Reports citing anonymous sources revealed that the president had urged Zelensky to investigate Democrat Joe Biden’s son Hunter. The leaked reports also suggested that Trump threatened to withhold military aid to Ukraine if Zelensky did not cooperate. Republicans mostly dismissed the stories as partisan rumor. However, when the inspector general’s opinion about the complaint emerged, the tone changed. Atkinson’s solid reputation convinced many skeptical Republicans that the matter was serious. The Trump appointee was widely considered an honest and forthright professional. “You would not know which political party [Atkinson] favors by working with him,” says Mary McCord, the former assistant attorney general for national security. “I worked with him for years. That’s the other reason I feel he’s so credible in this space.”

With Acting DNI Maguire still opposed, Atkinson was not authorized to go into detail about the whistleblower’s concerns. All he could do was make lawmakers aware of the complaint. In a closed-door appearance on September 19, 2019, Atkinson told the House Intelligence Committee that he and Maguire remained at an impasse. Yet Atkinson’s decision to go over Maguire’s head and alert members of Congress about the complaint proved crucial. His insistence that the whistleblower’s allegation was credible set in motion powerful forces that soon would threaten Trump’s presidency.

A Grilling before the Intelligence Committee

By September 26, when Maguire appeared before the House Intelligence Committee, the whistleblower story had exploded. Characteristically, the president disavowed any problems. When reporters asked Trump if he had read the whistleblower’s complaint, he ridiculed the media response. “Everybody has read it and they laugh at it,” he said. “The media has lost so much credibility in this country. Our media has become the laughingstock of the world.” Nonetheless, to most of official Washington, the complaint was no laughing matter.

Sparks flew as members of the House Intelligence Committee grilled Maguire about his decision to withhold the whistleblower report from Congress. Maguire, who had been serving as the DNI for only a few weeks, repeatedly defended his actions by saying the situation was unprecedented. All previous whistleblower complaints to the DNI had flagged members of the intelligence community, not the president. He also raised questions of executive privilege. This is the rule whereby sensitive documents or information related to the president and members of the executive branch can be shielded from release.

However, Chairman Adam Schiff and his fellow Democrats on the committee slammed Maguire for what they considered possible legal violations. They noted that whistleblower complaints are protected by law. “Regardless of whether it’s found credible or incredible, you’re aware the complaint is always given to our committee,” said Schiff. Maguire also admitted that he had spoken to Trump about the report but said the president had not directed him to withhold anything. Overall, Maguire’s six hours of testimony seemed only to increase the heat on Trump and his inner circle. The hearing, along with the release of the phone conversation, helped push the impeachment investigation into high gear.

Focusing on the Whistleblower

Suddenly, the hot topic nationwide was the anonymous whistleblower. A whistleblower is someone who informs on a person or group allegedly engaged in illicit activity. The Whistleblower Protection Act of 1989 offers certain protections to informers in the federal government. For example, they cannot be demoted, replaced, or punished with pay cuts. These protections are designed to encourage government officials to speak out about misconduct they have witnessed without fear of reprisal. The statute, as applied to the Trump whistleblower, prohibited national intelligence officials from naming the person or describing his or her position. It also laid out the proper procedures for reviewing the complaint. During his House testimony, Maguire stressed that protecting the whistleblower was the highest priority of his office.

Naturally, a great deal of curiosity arose about the whistleblower. People wanted to know what position the person held and how he or she came to discover the alleged abuses. Schiff and other Democrats said they were anxious to hear from the whistleblower. Such testimony would have required a closed session to protect the whistleblower’s identity along with special security clearances for the individual’s attorneys. Republicans such as Representative Andy Harris of Maryland, questioned whether the whistleblower’s complaint might have sprung from political bias against Trump. Amid such speculation, the New York Times ran a detailed description of the whistleblower without including the person’s name.

The Times revealed that the whistle blower was a male Central Intelligence Agency (CIA) officer who worked at the White House. He had training as an analyst with special expertise on Ukrainian politics and policy. The Times also learned that the officer had not listened directly to Trump’s July phone call. Instead, he had learned about the president’s potential abuses from colleagues. They told him that future contacts between Trump and Zelensky rested on whether the Ukrainians would agree to investigate the Bidens. The whistleblower did not deliver the accusations to agency lawyers until one week after the call. The lawyers decided early on that his complaint had a reasonable basis and should go forward. From that point, news of the officer’s concerns made its way through the CIA chain of command and on to the Justice Department and the White House. Concerned that the White House would bury the allegations, the officer decided to file an official whistleblower complaint with Atkinson.

The whistleblower’s own lawyers refused to confirm the Times report. However, they did insist that publishing such information was dangerous. “Any decision to report any perceived identifying information of the whistle-blower is deeply concerning and reckless, as it can place the individual in harm’s way,” said Andrew Bakaj, the officer’s lead counsel. “The whistle-blower has a right to anonymity.” Despite these warnings, details about the whistleblower continued to emerge. The Washington Post and the Associated Press added to the Times‘s portrait of the CIA officer. Some conservative sites speculated about his identity and motives. In political circles, the officer’s name was widely suspected. But although the media were under no obligation to keep the name secret, most outlets did. This held true for news media on both the political left and right.

A Presidency in Constant Peril

The whistleblower’s complaint and the resulting media frenzy returned Trump’s presidency to a familiar place—seeming to teeter on disaster. Trump had already been subject to more scrutiny than any recent president. His status as a blustering outsider with no governing experience placed him at odds with official Washington from the start. His campaign pledge to “drain the swamp,” or end what he claimed was the cronyism and corruption in Washington, may have thrilled his supporters, but it also enraged his opponents, who in turn accused Trump himself of engaging in nepotism and cronyism.

Among Capitol Hill insiders, predictions were rife that he would not serve out his term. Even on January 20, 2017, the day Trump had been sworn into office, a headline in the Washington Post had announced, “The Campaign to Impeach President Trump Has Begun.” Lawrence Tribe, a Harvard law professor and one of the country’s leading experts on constitutional law, thundered that Trump “must be impeached for abusing his power and shredding the Constitution more monstrously than any other president in American history.” This remark came after Trump had been in office only two weeks.

The Trump White House had suffered from leaks that portrayed the president as out of his depth on foreign policy. Early in his administration, full transcripts of Trump’s calls with the president of Mexico and the prime minister of Australia were leaked to the Washington Post, making it difficult going forward for him to hold high-level talks in private. Charges of conspiring with Russia sparked investigations by intelligence committees in both houses of Congress as well as by the Federal Bureau of Investigation (FBI), the CIA, and other intelligence agencies. FBI wiretaps of a Trump campaign official—later found to be based on questionable evidence—added to the scrutiny. Robert Mueller’s special counsel investigation found insufficient evidence of a Trump-Russia conspiracy, but not before the president had faced nearly two years of further probes and dire predictions from the media. According to the New York Times, by September 2019, Trump was the subject of at least thirty investigations, including twelve congressional inquiries, ten criminal investigations at the federal level, and eight by state and local authorities. He had grown accustomed to daily chaos and accusations, with much of the turmoil caused by his own erratic behavior. In typical fashion, Trump continued to fire off combative tweets, rally his supporters, and chide his enemies for failing to bring him down.

The Trump-Zelensky Phone Call

The whistleblower complaint revived a concern from the first weeks of Trump’s presidency. Worries about leaks had led the White House to clamp down on access to records of presidential phone calls. Nonetheless, on September 24, in an effort to defuse the crisis, the White House released a transcript-like summary of Trump’s phone call with Ukraine’s president. The document was not an exact re-creation of the call but was compiled from the notes of several officials who had listened in (as is common on such calls).

It revealed a relaxed exchange in which Trump first congratulated Zelensky on his April 2019 upset victory in Ukraine’s presidential election. Then Trump made a pointed request: “I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine … I would like to have the Attorney General call you or your people and I would like you to get to the bottom of it.” The situation Trump referred to was the hacked computers of the Democratic National Committee. The president apparently believed discredited stories claiming the hacked server somehow wound up in Ukraine. No evidence exists for these claims.

Trump also wanted information about alleged Ukrainian aid to Hillary Clinton’s 2016 campaign. After Zelensky agreed to help with these investigations, Trump referred to a Ukrainian prosecutor who was fired: “Good because I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. A lot of people are talking about that, the way they shut your very good prosecutor down and you had some very bad people involved.”

Trump was talking about Viktor Shokin, a Ukrainian official whose job included investigating the energy company Burisma Holdings. That is the company that Hunter Biden had joined as a board member in 2014. Shokin was fired in March 2016 for allegedly going easy on corrupt business figures. After encouraging Zelensky to call Rudy Giuliani, the president’s personal lawyer and longtime friend, about Shokin, Trump focused on the Bidens: “The other thing, 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. Biden went around bragging that he stopped the prosecution so if you can look into it … it sounds horrible to me.”

For Trump, the transcript-like summary was proof that the phone call contained nothing improper, that he had done nothing wrong. He claimed that he merely made a routine request for Zelensky’s help in getting to the bottom of issues important to the United States. To others, however, the evidence of abuse of power was clear. Trump, they noted, had reminded Zelensky that the United States does a lot for Ukraine. With hundreds of millions of dollars in US military aid to Ukraine yet to be delivered, Trump had demanded an investigation of a political rival in exchange for the aid. This idea of a quid pro quo—giving something in order to get something—would become a key accusation in the impeachment inquiry.

Giuliani, Biden, and Corruption in Ukraine

According to Trump, one of his main goals in speaking to Zelensky was finding out whether the new Ukrainian president was committed to rooting out corruption in Ukraine. In June 2018, Trump had told a meeting of European leaders that Ukraine was one of the most corrupt countries in the world. Watchdog groups agreed. That same year, Transparency International ranked Ukraine as having high levels of corruption. Freedom House rated it second only to Russia in corruption among European nations. Frequent charges included bribery, kickbacks, and sweetheart deals for the oligarchs—or powerful business figures—who dominated Ukraine’s economy. But Zelensky had campaigned on a promise of cleaning up his nation’s corruption—and by most reliable accounts, he was trying to do just that. In addition to Trump’s concern over Ukrainian corruption, he held a grudge related to the 2016 US election. In his view—which was widely disputed—Ukraine had taken steps to aid Clinton’s campaign against him. This suspicion made him leery of dealing with Ukraine.

Trump enlisted Giuliani for the job of checking into Ukraine’s anticorruption efforts. As a former prosecutor and one-time mayor of New York City, Giuliani had been through various political wars. And yet his role in the Ukrainian mess came under scrutiny. Critics questioned the propriety of a private citizen like Giuliani acting as the president’s agent in a matter of foreign policy. Some also pointed out that Giuliani had often spread conspiracy theories about the Bidens and alleged corruption in Ukraine. He clearly wanted Ukraine’s investigators to pursue the Biden angle more vigorously. To Democrats and many in the media, Trump and Giuliani had little interest in Ukrainian corruption. Instead, they wanted to smear Joe Biden. As the whistleblower declared in his complaint, “The president’s personal lawyer, Mr. Rudolph Giuliani, is a central figure in this effort.”

At the same time, Republicans noted that questions about the Bidens’ dealings in Ukraine were not limited to conservative sources. In 2014 Hunter Biden was hired to serve on the board of Burisma Holdings, a Ukrainian oil and natural gas company. At the time, his father was overseeing policy on Ukraine for President Barack Obama’s administration. This arrangement raised eyebrows in the State Department. Hunter had no experience in the energy field and never visited the country on company business during his tenure on the board. (Board meetings were held outside Ukraine.) Nonetheless, he was paid $50,000 a month, for a total of more than $3 million. During Hunter’s time on the board, the Ukrainian government was investigating Burisma’s owner for tax violations and money laundering. In December 2015, vice president Biden joined other Western nations in pressuring the Ukrainians to fire Shokin, the lead investigator. Reformers and Western diplomats considered Shokin to be corrupt and had been calling for his removal for months. The vice president threatened to withhold US loan guarantees if Shokin were not removed. Republicans likened this action to the actions of President Trump in his dealings with Ukraine.

The Trump-Ukraine controversy brought Hunter Biden into the media spotlight. During a September 2019 interview with ABC News, Biden said he only had one brief talk with his father about Ukraine. He recalled that his father told him, “I hope you know what you’re doing.”

Raising More Questions

Despite the attention directed at the Bidens, it was the explosive whistleblower revelation that roiled Washington. Rather than easing pressure on the Trump White House, the release of the details of the conversation between Trump and Zelensky only raised more questions. On October 4, House Democrats began to issue subpoenas to White House officials, other administration figures, and Trump associates, including Giuliani. The impeachment inquiry was beginning to pick up speed.

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