Criminal Justice & the Rule of Law Executive Branch Foreign Relations & International Law Intelligence

The Hearing and the Whistleblower Complaint: L’Affaire Ukrainienne Continues

Scott R. Anderson, Quinta Jurecic, Jacob Schulz, Margaret Taylor
Thursday, September 26, 2019, 8:47 PM

The earthquake took place yesterday, but today’s aftershocks continued to rock the Trump presidency.

First, the House Intelligence Committee released the whistleblower complaint. Then, amid presidential attacks on the whistleblower, the committee heard testimony from Acting Director of National Intelligence Joseph Maguire, with Democrats battering him for his having withheld the complaint until yesterday.

President Donald Trump and Ukrainian President Volodymyr Zelensky. (Official White House Photo by Shealah Craighead)

Published by The Lawfare Institute
in Cooperation With

The earthquake took place yesterday, but today’s aftershocks continued to rock the Trump presidency.

First, the House Intelligence Committee released the whistleblower complaint. Then, amid presidential attacks on the whistleblower, the committee heard testimony from Acting Director of National Intelligence Joseph Maguire, with Democrats battering him for his having withheld the complaint until yesterday.

Both events had something of an air of afterthought. The complaint, after all, was meant to alert people to the president’s wildly inappropriate conversation with his Ukrainian counterpart. But the substance of that conversation was already public. The hearing, meanwhile, was meant to hold Maguire accountable for refusing to release the whistleblower’s complaint. But by the time it took place, the complaint itself was public too. So a hearing designed to force the release of a complaint, which was designed to blow the whistle on a presidential conversation, took place after the complaint’s release—which in turn took place after the president’s conversation became public.

Such is modern oversight.

And yet, both the hearing and the complaint itself added information. In this post, we offer an overview of both the complaint itself and the hearing in the Intelligence Committee.

Committee Chairman Adam Schiff described the complaint as “well written.” And, indeed, it is. It tells a clear and upsetting story—a devastating one, really—marching relentlessly through the details of the president’s actions. By and large, it confirms much of the reporting on L’Affaire Ukrainienne that has surfaced over the past several days, including the discomfort within the administration over Rudy Giuliani’s apparent co-opting of U.S. foreign policy toward Ukraine. But it is nevertheless striking to read the account straight through as a chronicle of presidential misconduct written by a shocked inside observer of that misconduct.

The whistleblower’s Aug. 12 letter opens with a blunt statement of what he uncovered and found concerning enough to warrant the complaint:

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. This interference includes, among other things, pressuring a foreign country to investigate one of the President’s main domestic political rivals.

The complaint is framed in the language of the whistleblower statute: The writer states that he believes that the president’s actions “constitute ‘a serious or flagrant problem, abuse, or violation of law or Executive order’ that ‘does not include differences of opinions concerning public policy matters,’ consistent with the definition of an ‘urgent concern’ in” the statute.

The complaint then shifts to a discussion of the July 25 Trump-Zelensky phone call. Most of the facts the whistleblower describes are consistent with the memorandum of that call released by the White House on Sept. 25. But the complaint’s account contains one new allegation: that Trump had praised the Ukrainian prosecutor general at the time, Yuriy Lutsenko, and urged Zelensky to keep him on. This was not reflected in the transcript later released by the White House, indicating that either the whistleblower’s sources were mistaken or that transcript is incomplete. (Lutsenko was dismissed from the role in August 2019. As the whistleblower notes, through the spring of 2019 Lutsenko made a string of derogatory allegations regarding the Bidens and the Obama administration, which he later recanted.)

The whistleblower explains that he was not a firsthand witness to the conversation between Trump and Zelensky but, instead, that he received word from “[m]ultiple White House officials with direct knowledge of the call” who “were deeply disturbed by what had transpired in the phone call.” By the time the issue came to the whistleblower’s attention, White House officials and lawyers had already begun to discuss the legal issues raised by what appeared to be Trump’s apparent abuse of public office for personal gain. Participation in the call had not been restricted and the whistleblower states that, consistent with standard practice, approximately a dozen White House officials and at least one State Department official listened in on the exchange with Zelensky.

At this point, the whistleblower shifts to another topic: the cover-up. This is one of the major new pieces of information contained in the complaint, though the Washington Post reported on it yesterday evening after the House and Senate Intelligence Committees viewed the complaint. It is not described by the five-page document the White House released yesterday, for obvious reasons. These were the efforts to squelch what happened in the conversation that document memorializes.

Multiple U.S. officials, the whistleblower writes, informed him that White House officials “had intervened to ‘lock down’ all records of the phone call,” especially the transcript typically generated to document such calls with foreign leaders. Specifically, the whistleblower understands that White House lawyers directed other White House officials to remove the transcript from the computer system usually used to store such communications and place it on “a separate electronic system that is otherwise used to store and handle classified information of an especially sensitive nature.” This measure prevented other officials from accessing the transcript, and the whistleblower reports that one White House official described it to him as “an abuse of this electronic system”—in the whistleblower’s words—“because the call did not contain anything remotely sensitive from a national security perspective.”

In a declassified portion of the letter’s classified appendix, the whistleblower elaborates on this assertion, noting that he understood from White House officials that the call had been placed into a “standalone computer system reserved for codeword-level intelligence information” managed by the National Security Council’s Directorate for Intelligence Programs. White House officials told the whistleblower that this was “not the first time” a transcript of the president’s conversations had been placed in this system for political, rather than national security, purposes. This, too, is new information—and potentially explosive insofar as it speaks to the misuse of classification systems for the personal benefit of the president. No doubt the investigating committees—not to mention the press—will spend time digging into what other presidential conversations have been shielded this way. Meanwhile, Sen. Dianne Feinstein has demanded that the White House provide her with a full copy of the original transcript of the Trump-Zelensky call.

The whistleblower then goes on to note several developments since the July 25 call. Based on official readouts recounted to him, he writes that Ambassador Kurt Volker, the U.S. special representative for Ukraine, and Gordon Sondland, the U.S. ambassador to the European Union, met with Zelensky and other Ukranian officials on July 26 to advise them on how to “navigate” Trump’s demands. Citing reports from multiple U.S. officials, the whistleblower also notes that Trump’s personal lawyer, Rudy Giuliani, reached out to several of Zelensky’s advisers and met with Zelensky’s advisers for a “direct follow-up” to the president’s request on or about Aug. 2. (The meeting was reported by the New York Times in late August but was not characterized at the time as a follow-up to the president’s call.) He also notes that several Ukrainian officials may have been planning travel to Washington, including potentially Zelensky himself; Trump publicly confirmed on Aug. 9 that Zelensky had been invited to the White House.

The whistleblower concludes by providing a detailed timeline of events leading up to the July 25 call. This timeline seems aimed at clarifying why the whistleblower found the developments described above so concerning. Sourced to both open sources and reports from U.S. officials, the account reveals a degree of familiarity with players in Ukrainian politics. The account is consistent with public reports so far, though it adds detail on the view from within the U.S. government.

The backstory, as the whistleblower tells it, begins in March 2019, when several Ukrainian officials—most notably Lutsenko, then still Ukraine’s prosecutor general—made a series of allegations reported in The Hill: that Ukrainian officials had collaborated with the DNC and the U.S. embassy in Kyiv to interfere in the 2016 elections in favor of Hillary Clinton; that Vice President Joe Biden had pushed for the firing of former Prosecutor General Viktor Shokin (Lutsenko’s predecessor) in order to quash a probe into the energy company Burisma Holdings, on whose board his son Hunter Biden sat; and that the U.S. embassy was interfering with anti-corruption efforts by Ukrainian law enforcement. The whistleblower notes that these op-eds came at a time when Lutsenko’s political patron, then-President Petro Poroshenko, seemed likely to be defeated by Zelensky. Lutsenko himself, along with other Ukrainian officials, later publicly repudiated several of these claims in both U.S. and Ukrainian media. In particular, Lutsenko stated that Hunter Biden had not been under investigation and that Ukraine had no evidence against him.

At several points, the whistleblower writes, Lutsenko stated his desire to communicate with Attorney General William Barr—echoing Trump’s suggestion in the call memo that Zelensky coordinate with Barr on an investigation of Biden. The whistleblower also cites public reports that Lutsenko had spoken to Giuliani by Skype in late 2018 and met with him in person twice in January and February 2019. In turn, he notes that Giuliani had publicly claimed that Barr’s probe into the origins of the Russia investigation, led by U.S. Attorney John Durham, would incorporate an investigation into Ukraine. The complaint also flags Giuliani’s apparent “circumvention of national security decisionmaking processes” in his efforts to coordinate with the Ukrainian government, which raised concerns within the State Department. And he includes the story of Marie Yovanovitch, the U.S. ambassador to Ukraine, who was ousted from her position reportedly in response to negative comments by Lutsenko—to the approval of Giuliani.

Finally, the whistleblower flags comments by “multiple U.S officials” that “the Ukrainian leadership was led to believe” that a conversation between Trump and Zelensky would depend on Zelensky’s willingness to look into the Biden matter. And he notes the sudden mid-July freeze on U.S. military aid to Ukraine—at Trump’s request—in advance of the Trump-Zelensky call.

It was in the maelstrom following the public release of the declassified whistleblower complaint—less than an hour after the release, in fact—that Maguire came before the House Intelligence Committee to testify about his office’s handling of the complaint. In his opening statement and throughout the hearing, Maguire defended the legality of his actions and the propriety of his consultation with the Office of Legal Counsel (OLC) about the handling of the complaint.

Schiff opened the hearing by reflecting on the gravity of the events described in both the whistleblower report and the memo documenting the call, which he described as a “graphic betrayal of the president’s oath of office.” The transcript, Schiff argued, “read like a mob shakedown”: Until Trump’s withholding of aid from Ukraine days before the call with Zelensky, he said, U.S. presidents and lawmakers have always approved aid to Ukraine on a bipartisan basis. He lauded the “courage” of the whistleblower and labeled Maguire’s handling of the complaint as “bewildering” and “troubling”—focusing on Maguire’s failure to deliver the complaint to Congress; his consultation with a department led by a man, Attorney General Barr, who himself was a subject of the complaint; and his silence in the face of the president’s inflammatory claims about the whistleblower.

Schiff and his fellow Democrats centered their questioning largely on Maguire’s process in dealing with the whistleblower complaint. They tried to establish a chronology and factual record of Maguire’s handling of the complaint, particularly about the involvement of the White House in the process.

Did Maguire first go to the White House with his complaint? Yes.

Did the White House direct Maguire to withhold the complaint? No.

Did he ever speak with the president about the complaint? Those conversations are privileged.

Did the White House instruct him to invoke executive privilege? No.

Many Democrats were critical of Maguire’s decisions. They wondered why he was not worried about the potential conflict of interest in letting a Barr-led Justice Department exert influence over the handling of the complaint when Barr was explicitly mentioned in the complaint itself. They pressed him on why he chose to seek OLC advice, instead of merely following the previously unbroken tradition of handing over all whistleblower reports to Congress. To these queries, Maguire stressed his concern about the exceptional nature of this complaint, which concerned activity outside the authority of the DNI.

Democrats also questioned Maguire about the impact of the handling of this complaint on the whistleblower process in the future. Rep. Terri Sewell expressed concern that the Justice Department’s intervention in this case may create a chilling effect on potential future whistleblowers. Many expressed concerns about the damage that the OLC opinion will cause to the effective functioning of the whistleblower process. Schiff expressed this concern in his closing questions.

Schiff’s Republican counterpart, Ranking Member Devin Nunes, took a different approach. Nunes attempted to tie recent Democratic scrutiny of the Trump administration’s conduct toward Ukraine with what he called the “Russia collusion hoax,” labeling the “storyline” of Trump’s involvement with Ukraine as “another Steele Dossier” and arguing that the Ukraine probe represents the “latest information warfare operation against the president.” Nunes defended the veracity of debunked allegations by Trump allies against the Bidens and otherwise tried to paint a picture of nefarious Democratic coordination with the Ukrainian government. As for the complaint itself, Nunes argued that the whistleblower relied on “hearsay” and claimed that the inspector general found that the whistleblower displayed “arguable political bias against Trump.”

Nunes’s opening statement, though particularly extreme, largely foreshadowed the tenor of Republican questioning throughout the hearing. Except for a few members, including Reps. Will Hurd and Elise Stefanik, who engaged Maguire with substantive questions about the whistleblower statute and process, Republicans overwhelmingly limited their remarks to platitudes about Maguire’s lengthy military service, criticisms about Democratic treatment of Maguire, and attempts to link the current investigation to what they view as its politically motivated predecessor: the Russia probe.

The hearing was tense and partisan, and with the complaint already released, it produced little new information. As Maguire put it regarding the complaint’s publication, “The horse has left the barn.” But the process did suggest a number of possible lines of inquiry for a committee seeking both to uncover the facts of the president’s conduct as part of an impeachment inquiry and to defend Congress’s own institutional prerogatives.

Some are pure issues of fact—for example, what role State Department officials named in the complaint—like Volker, Sondland and Counselor T. Ulrich Brechbuhl—played in all of this.

Other questions are factual in nature but call into question whether individuals adhered to established executive branch procedures—like who among the White House staff may have been involved with improperly putting the Trump-Zelensky call transcript onto the classified system. If it involved reclassifying the transcript, such action would seem contrary to Section 1.7 of Executive Order 13526, which states that “In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to … (1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency; (3) restrain competition; or (4) prevent or delay the release of information that does not require protection in the interest of the national security.” Even if it did not involve reclassifying the call memo, using the systems and procedures used to protect classified information to instead conceal material damaging to the president runs counter to the same underlying principle.

There are still other questions—most notably the puzzle of William Barr’s conduct in all of this. The attorney general’s role is certainly worthy not only of additional investigation by the committee but also of reflection on what ethical strictures required him to do at various moments in this scandal. Yet another question is what role, precisely, Rudy Giuliani played in these events and to what extent he coordinated or did not coordinate with the State Department or other agencies.

Speaker of the House Nancy Pelosi announced this afternoon that the Intelligence Committee will take the lead on conducting the investigation into L’Affaire Ukrainienne and will then transmit its findings to the House Judiciary Committee, which will take the lead in drafting any resulting articles of impeachment. Functionally, that makes today the first hearing of the Intelligence Committee’s part of the impeachment inquiry—and so the stakes were high.

But the committee is juggling more than one set of responsibilities. Not only was it engaged in the first steps in its Ukraine investigation as it relates to impeachment, but it was also working to reassert its own institutional equities against those of an administration that has run roughshod over Congress over the past three years. To some extent, these different goals worked in tandem: An aggressive investigation into the president’s conduct and White House handling of improperly classified records serves the purpose both of gathering material for impeachment and pushing back against an executive branch that has mobilized, properly or not, to protect the president.

Sometimes, though, these goals cut against one another. Throughout the hearing, commentators on social media criticized Schiff and committee Democrats for aggressively challenging Maguire on process issues, worrying that going after the earnest Maguire was a tactical and optical mistake and that the better path for Democrats would be to focus on the substance of the whistleblower complaint and the conduct of the president. That may be true as a matter of optics in the context of the ongoing impeachment inquiry. But it is also the case that this line of questioning—and the aggressiveness Democrats deployed in pressing Maguire on it—could represent important institutional pushback on the part of Congress against an executive branch that has, for decades, been developing and applying to itself legal theories to limit information and testimony provided to Congress. At a minimum, it is a sharp rebuke of an administration that, until this moment, has had no compunction about aggressively asserting the president’s executive privilege at the expense of Congress’s investigative and oversight powers.

The House Intelligence Committee’s hearing was not the only one that took place today. Maguire also testified in a closed session before the committee’s Senate counterpart, which is conducting its own, separate investigation. In a joint press conference, Chairman Richard Burr and Vice Chairman Mark Warner said they were “committed to getting to the bottom of the questions that need answers.”

As all this was taking place, the president was—of course—on the attack. It’s not a pretty picture, but in a sense, it’s Federalist 51 in action. Ambition is being made to counteract ambition. And that process is preventing a dangerous concentration of power in a single branch of government. In this case, it has allowed a single career intelligence officer to hold the president of the United States accountable—and congressional pressure has successfully forced his allegations to become public.

The collateral damage may be to the intelligence officer himself, against whom the president now has a vendetta and for whom all the whistleblower protections on the books may prove an inadequate bulwark. The collateral damage may not just be to him and his career but to the edifice designed to protect people like him. Shoring up that edifice will require careful congressional attention in the coming months.

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.
Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.
Jacob Schulz is a law student at the University of Chicago Law School. He was previously the Managing Editor of Lawfare and a legal intern with the National Security Division in the U.S. Department of Justice. All views are his own.
Margaret L. Taylor was a senior editor and counsel at Lawfare and a fellow in Governance Studies at the Brookings Institution. Previously, she was the Democratic Chief Counsel and Deputy Staff Director for the Senate Foreign Relations Committee from 2015 through July 2018.

Subscribe to Lawfare