Published by The Lawfare Institute
in Cooperation With
The news is moving quickly on events surrounding President Trump’s ill-fated phone call with Ukrainian President Volodymyr Zelensky and the whistleblower complaint about the call that precipitated this latest crisis. But the complaint itself, released on Sept. 26, is a complicated document. It may be more easily understood with the benefit of three additional explanations, which I attempt to provide below.
First, a straight chronology of the events in question. The complaint begins with an account of the July 25 call between Trump and Zelensky, and then separately covers efforts to restrict access to the records of that call, other ongoing concerns raised by government officials, and the circumstances leading up to the July 25 call. The letter also distinguishes between information obtained privately and information obtained from the public domain (e.g., public statements or tweets by the president), and it segregates possibly classified material in an enclosure. This makes for a compelling presentation, but more sustained analysis may benefit from an integrated, all-source, linear approach.
Second, a framework for assessing the facts and the chronology. This is an analysis of the whistleblower’s factual reporting as well as the Memorandum of Conversation (MemCon, as such transcripts are known) of the July 25 presidential call and associated public reporting. In brief, I think we are presented with a subversion by Trump of many of the traditional instruments of national power, in service not of the national interest but of his own personal and political interest. That is, the president used the carrots and sticks of U.S. foreign policy and diplomacy, and at least attempted to use certain counterintelligence and law enforcement tools, to damage a political opponent. This represents a profoundly corrupt misuse of the machinery of government for personal gain.
Third, a brief assessment of what remains to be done. The complaint requires some validation but also serves as a kind of road map for the House of Representatives in its impeachment investigation. There are several witnesses named in the complaint—along with several who are unnamed but may be available—who should be interviewed and perhaps called to testify, either in closed or perhaps in open session. There are documents that can be pursued. Overall, the complaint provides several leads to be followed.
Here, in chronological order, is what the letter describes. The account below takes as true the whistleblower’s account, including his characterization or quotation of public statements in the news media. The purpose of the chronology is not to independently verify the accuracy of the report, or the sources that it cites, but simply to present it in a more accessible form, and to integrate it with other available information, including the MemCon of the July 25 call. In the account below, for simplicity, I refer to individuals by position rather than by name with the following exceptions: President Trump; President Zelensky; Trump’s personal lawyer, Rudy Giuliani; U.S. Attorney General William Barr; former Ukrainian Prosecutor General Yuriy Lutsenko; and former Vice President (and current Democratic candidate for president) Joe Biden and his son, Hunter Biden.
The story begins in late 2018, when Giuliani is apparently in contact with Ukrainian law enforcement officials, and becomes more focused in January and February 2019, when Giuliani meets with Lutsenko in New York and in Warsaw, Poland. The following month, March 2019—at a time when Lutsenko’s political patron, who is running for president against Zelensky, is expected to lose the election—The Hill publishes a series of articles featuring various assertions from Lutsenko that are favorable to President Trump. These include claims that Ukrainian officials engaged in election interference in favor of Hillary Clinton and against Trump in the 2016 U.S. presidential election; that the U.S. ambassador to Ukraine tried to suppress evidence of this election interference; and that the ambassador also opposed efforts by Ukrainians (including Lutenko’s predecessor as prosecutor general of Ukraine) to investigate or prosecute matters that could be damaging to Vice President Joe Biden and/or his son, Hunter Biden. Lutsenko also says publicly that he wants to talk to the U.S. attorney general, William Barr, about these concerns. In April 2019, Trump refers on Fox News to Lutsenko’s allegations and says that they should be reviewed by Barr. (According to a recent statement from the Justice Department’s spokesperson, issued after the release of the MemCon, Trump never speaks directly to Barr about this; the Justice Department statement does not say whether Barr ever becomes aware of the president’s remarks about him on television.)
Within a few weeks, however, Lutsenko has effectively disavowed the claims and/or contradicted himself in public statements, including in an assertion to Bloomberg that he has no evidence of wrongdoing by the Bidens. (In a story published after the release of the whistleblower complaint, the Washington Post reports that Lutsenko also confirmed this in a very recent interview.) The whistleblower complaint describes how Lutsenko does not enjoy a reputation for honesty, integrity or excellence in Ukraine, and that he has various political and personal motivations to say things favorable to Trump, perhaps based on suggestions from Giuliani in the January and February meetings. (For a thorough review of the merits of the Biden allegations, see this post and this post at Just Security.)
On March 31, Ukraine holds the first round of its presidential elections. During the final round on April 21, Lutsenko’s patron is defeated and Zelensky wins. On May 11, Lutsenko meets with President-elect Zelensky in an effort to keep his job as prosecutor general of Ukraine. Zelensky is inaugurated as the president of Ukraine on May 20, and Lutsenko apparently departs some time thereafter, perhaps officially as late as August 2019.
Although Lutsenko has basically recanted his allegations, they remain relevant. By late April, the U.S. ambassador to Ukraine has been recalled to Washington, and on May 6, the State Department announces that she is ending her assignment “as planned.” Various U.S. officials, however, tell the whistleblower that the ambassador was removed precisely because of Lutsenko’s prior allegations, and Giuliani himself confirms this in public statements to the Ukrainian news media.
On May 9, Giuliani states publicly that he is going to travel to Ukraine to press Ukrainian officials to conduct investigations that will help his client, President Trump. He says that Trump basically knows what he (Giuliani) is doing, and Trump later states that he knows about the trip. Giuliani says publicly that he is going to Ukraine to “meddle” in the Ukrainian investigations in ways that are helpful to Trump. But Giuliani later announces he is canceling the trip, and his comments suggest the cancellation is due to the preferences of the Ukrainians. He apparently does manage to send two unnamed “associates” to meet with high-ranking Ukrainian officials in May 2019, however. Giuliani himself also apparently meets with two other Ukrainian officials shortly after Zelensky’s inauguration on May 20, perhaps outside of the Ukraine. (In the July 25 call, Zelensky say to Trump that “I will personally tell you that one of my assistants spoke with Mr. Giuliani just recently.”)
Also in May, Barr announces his investigation into the U.S. intelligence community’s work related to Russian interference in the 2016 presidential elections. Among the issues on which Barr expresses concerns are questions of whether the intelligence community improperly “spied” on the Trump campaign. On May 23, at Barr’s request, the president gives the attorney general unilateral authority to declassify intelligence community information pertaining to the investigation.
By mid-May, multiple U.S. officials mention concerns to the whistleblower that Giuliani has created a backchannel to Ukrainian officials that is subverting U.S. foreign policy and national security. Two senior U.S. diplomats—the special representative for Ukraine negotiations and the ambassador to the European Union—speak with Giuliani in an apparent effort to rein him in and “contain the damage” to U.S. national security.
These two senior U.S. diplomats also meet with Ukrainian officials to help them sort out and understand the American position, given the divergence between Giuliani’s focus on advancing his client’s interest and the efforts of U.S. government personnel to pursue and advance the national interest. The whistleblower learns from U.S. officials that the Ukrainians have come to understand—presumably from Giuliani and/or his associates, although the whistleblower doesn’t know for sure—that if they want a telephone call between their president and President Trump, they need to “play ball” on the allegations against Biden et al.
The complaint then describes a series of three escalating measures, directed by Trump and/or carried out by Giuliani on a monthly cadence from May to July 2019. These measures appear to have been designed to convey the “play ball” requirement to the Ukrainians in increasingly stark terms. The whistleblower conveys these three steps in a way that suggests, although the complaint does not always firmly assert, that they are explicitly part of an organized strategy.
First, on May 14, Trump instructs the vice president not to attend Zelensky’s May 20 inauguration in Ukraine. The U.S. delegation is instead headed by the secretary of energy, a lower-ranking U.S. official. Other U.S. government officials advise the whistleblower that it was “made clear” to them that the president does not want to meet with Zelensky until he sees how the latter behaves in office. The whistleblower does not know whether this stated reluctance to meet with Zelensky is tied to the requirement that he “play ball” on the Biden allegations.
Second, on June 21, apparently frustrated at the lack of Ukrainian ball-playing, Giuliani tweets his complaint that Zelensky was “still silent on the investigation of Ukrainian interference in 2016 and alleged Biden bribery” and explicitly calls for Zelensky to “investigate both.” This tweet from Giuliani comes eight days after Trump makes clear, in a televised interview with George Stephanopoulos of ABC News, that he would in fact accept damaging information on a political rival provided by a foreign government.
Third, the following month, on July 18, the Office of Management and Budget (OMB) in the White House officially informs U.S. departments and agencies that Trump had, “earlier that month,” suspended foreign aid to Ukraine. The whistleblower characterizes this as a “sudden change” in U.S. policy. The suspension directive is repeated by OMB officials in two U.S. National Security Council (NSC) meetings later in July, and while the OMB officials explain that the suspension order comes directly from Trump, they are not aware of any policy rationale behind the president’s decision.
On July 25, Trump and Zelensky have their fateful telephone call, as described in the now-declassified MemCon, which reads like a transcript. It appears that the whistleblower did not have the benefit of seeing this MemCon at the time he wrote his letter to Congress and that his knowledge of it comes from various U.S. officials who either saw it or heard of it. But his letter provides the background for the call and some interesting information about what happened after it.
The July 25 call, as described in the MemCon, begins with Trump congratulating Zelensky on a recent victory in Ukrainian parliamentary elections. As noted above, Zelensky was elected in April 21 and inaugurated on May 20, and Zelensky refers to a prior call from Trump to congratulate him on that victory, saying that Trump has been a “great teacher” on how to achieve political and governmental success. Trump responds by agreeing that “the United States has been very very good to Ukraine” and specifically that the U.S. has been better than Germany and other Europeans. But Trump also observes that “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.”
Trump does not specify the “things” that are “not good” or the lack of “reciprocal” favorable treatment from Ukraine, and Zelensky does not initially take the bait. Instead, he agrees “[n]ot only 100%, but actually 1000%” with Trump, apparently about Europe, recounting his own prior complaints to the German and French leaders about their lack of support and reiterating his gratitude for how “the United States is doing quite a lot for Ukraine.” Zelensky ends by saying that “[w]e are ready to continue to cooperate for the next steps specifically we are almost ready to buy more Javelins [a military weapons system] from the United States for defense purposes.”
Trump does not engage on the Javelin weapons, having previously decided to suspend aid to Ukraine, but instead makes the following points—many of which are understandable with the benefit of context provided by the complaint.
First, Trump makes the following bizarre statement: “I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike ... I guess you have one of your wealthy people ... The server, they say Ukraine has it. There are a lot of things that went on, the whole situation.”
As the whistleblower explains, “I do not know why the President associates these servers [from Crowdstrike] with the Ukraine.” The idea appears to be that Crowdstrike, the cybersecurity firm hired by the Democratic National Committee (DNC) to investigate Russian hacking in connection with the 2016 U.S. presidential election, tried to hide the DNC servers in Ukraine and/or fabricate evidence of Russian misconduct. Trump has discussed this on Fox News and on Twitter in the past (see, e.g., here, here and here).
Trump asks Zelensky to assist with Barr’s investigation of the intelligence community and its investigation of the Trump campaign: “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. As you saw yesterday, that whole nonsense ended with a very poor performance by a man named Robert Mueller, an incompetent performance, but they say a lot of it started with Ukraine. Whatever you can do, it’s very important that you do it if that’s possible.”
But the center of the call is when Trump refers specifically to Lutsenko’s predecessor as Ukraine’s prosecutor general and his investigation of the Bidens. He says, “I heard you had a prosecutor who was very good and he was shut down and that’s really unfair… Mr. Giuliani is a highly respected man … and I would like him to call you. I will ask him to call you along with the Attorney General … If you could speak to him that would be great.”
Trump also mentions the recall of the U.S. ambassador to Ukraine, whom he describes as “bad news,” adding that “the people she was dealing with in the Ukraine were bad news so I just want to let you know that.” Zelensky has no objection to her removal; he apparently did not like her or believe that she supported him.
And then Trump gets to “[t]he other thing,” which is that “[t]here’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.”
Zelensky responds by promising that “the next prosecutor general will be 100% my person, my candidate,” and “he or she will look into the situation, specifically the company that you mentioned in this issue.” According to the MemCon, Trump has not in fact mentioned the company at this point (Hunter Biden was on its board of directors), but apparently Zelensky has been briefed by his staff in advance of the call, probably based on prior discussions with Giuliani, which is a routine precursor to calls between presidents. A subsequent Ukrainian public readout of the call refers to Trump’s “conviction that the new Ukrainian government will be able to … complete the investigation of corruption cases that have held back cooperation between Ukraine and the United States.” The only “cases” discussed on the call concern Biden.
Trump reiterates that Barr and Giuliani will call Zelensky and that “I’m sure you will figure it out.” By this point, Zelensky has already said that “I will personally tell you that one of my assistants spoke with Mr. Giuliani just recently and we are hoping very much that Mr. Giuliani will be able to travel to Ukraine and we will meet once he comes to Ukraine.”
Zelensky then mentions that he stayed in Trump Tower when last he visited New York and that he “wanted to thank you for your invitation to visit the United States, specifically Washington DC. On the other hand, I also want to ensure [sic] you that we will be very serious about the case and will work on the investigation” relating to Biden.
Trump replies by again saying that “I will tell Rudy and Attorney General Barr to call” and that “[w]henever you would like to come to the White House, feel free to call.”
Zelensky reciprocates with an invitation for Trump to visit Kyiv and suggests the possibility of a meeting in connection with a Sept. 1 visit to Poland.
This call between Trump and Zelensky appears to be the straw that broke the camel’s back and at least initially triggered the whistleblower. To be sure, the complaint makes clear that multiple officials had been communicating with him during the spring and summer of 2019, but the July 25 call clearly raises the stakes. “Multiple White House officials with direct knowledge of the call informed” the whistleblower that, “after an exchange of pleasantries, the President used the remainder of the call to advance his personal interests” and, in particular, to “pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid.” The whistleblower reports that around a dozen White House officials (and one named State Department official) listened to the call. These White House officials, we now know, accurately conveyed the substance of the call to the whistleblower, including Trump’s praise for Lutsenko’s predecessor, the explicit request to investigate Joe Biden’s son, the strange reference to the DNC servers, and the reference to follow-up communications with Giuliani and Barr. Some of these officials may have used the whistleblower as a clearinghouse for raising their own concerns.
The White House officials told the whistleblower that they were “deeply disturbed by what had transpired in the phone call” and that White House lawyers were already engaged on the issue because of worries that the officials had witnessed the president “abuse his office for personal gain.” There is a solemnity to the whistleblower’s account on this point, apparently to emphasize the significance of the concerns and the importance to the officials of bringing them forward.
The White House lawyers, however, reacted differently than their nonlawyer colleagues, at least as described by the whistleblower. His letter reports that the lawyers “directed” other White House officials to “remove the electronic transcript” or MemCon “from the computer system in which such transcripts are typically stored” and to load it into “a separate electronic system that is otherwise used to store and handle classified information of an especially sensitive nature,” a system used for things like covert action and other special access programs. This is described as an effort to “‘lock down’ all records of the phone call,” which the whistleblower says reflects a consciousness of guilt: “This set of actions underscored to me that White House officials understood the gravity of what had transpired in the call.” However, the whistleblower reports that it was not the first time that presidential MemCons were segregated in this way—and this certainly invites speculation about what might be memorialized concerning some of Trump’s calls with Russian President Vladimir Putin or other world leaders.
One White House official described the White House lawyers’ conduct “as an abuse of this electronic system because the [July 25] call did not contain anything remotely sensitive from a national security perspective.” The MemCon of the July 25 call was originally classified at the Secret level, not as Top Secret or as Sensitive Compartmented Information (SCI). The government had no difficulty declassifying it in its entirety when politically compelled to do so. As the whistleblower notes in his letter, Section 1.7 of Executive Order 13526 provides that “[i]n no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to … conceal violations of law, inefficiency, or administrative error” or to “prevent embarrassment.”
Meanwhile, outside the White House, the two senior U.S. diplomats who had tried to control Giuliani and explain U.S. priorities to the Ukrainians back in May were dispatched again. On July 26, the day after the call, they were in Ukraine prepared to meet with Zelensky, and they advised Ukrainian officials on “how to ‘navigate’ the demands that the President had made of Mr. Zelensky.”
But Giuliani was also continuing to act. On or about Aug. 2, the whistleblower reports, he went to Madrid to meet with one of Zelensky’s advisers, which U.S. officials characterized as “‘direct follow-up’” to the July 25 call. On Aug. 8, Giuliani said on Fox News that the Justice Department official looking into the Russia investigation was also examining Ukraine, and the whistleblower refers to public reporting that two associates of Giuliani were working with Ukraine to assist with this. The next day, Trump said publicly that he thought Zelensky was going to make a deal with Putin and would be invited to visit the White House. Zelensky has not in fact visited the White House since then.
Assuming that all or most of it is accurate—and there are ample reasons to believe that is the case—the complaint describes an utterly devastating abuse of power. As described by the whistleblower, the president essentially subverted or hijacked the machinery of government to his personal and political ends. To their credit, the White House and intelligence community officials who spoke to the whistleblower seem to have recognized this and reacted with alarm. Even when measured against Trump’s prior behavior, the Ukrainian episode is very bad.
When I began writing this piece, I thought I might need to explain in some detail why the president’s behavior was improper. I believe now that I do not. It is, or ought to be, obvious that the president of the United States may not deploy the machinery of government, including foreign policy and potentially law enforcement, for personal political gain. The country learned that lesson during the administration of President Nixon, with his infamous “enemies list,” which outlined ways to “use the available federal machinery,” like IRS audits, “to screw our political enemies.” This effort by Trump is quite similar, and similarly corrupt.
Indeed, even the president’s defenders are helping to frame the issue in a way that is illuminating. For example, the White House press secretary tweeted as follows:
Myth: The President urged Zelensky to work with Rudy Giuliani to investigate the Bidens.— Stephanie Grisham (@PressSec) September 26, 2019
Fact: The President mentioned Giuliani only after Zelensky mentioned him first, and referred to Biden in only one exchange.