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Analysis: 9 questions about the Trump whistleblower complaint, answered

The Washington Post logo The Washington Post 9/21/2019 Aaron Blake

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Washington has been engulfed in recent days by a fast-evolving story about a whistleblower complaint regarding alleged misdeeds by President Trump.

Given the complexity of it and all the angles involved, here’s an explainer that covers the major points.

1. What did Trump allegedly ‘promise,’ and what’s the big deal?

The big, unanswered questions here are essentially: Did Trump make some kind of promise to a foreign government (apparently Ukraine) that would involve using official government resources for personal gain? And if he didn’t make a promise, how persistent were his efforts to gain foreign assistance?

A whistleblower from the U.S. intelligence community filed a complaint Aug. 12 that alleged some kind of wrongdoing at high levels of the U.S. government. But we haven’t seen the complaint, nor has it been shared with Congress.

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Thanks to reporting from The Washington Post’s national security team this week, though, we now know that this whistleblower’s complaint involves Trump and alleges that he made some kind of a “promise” to a foreign leader. We then learned that the complaint involves Ukraine. By Friday afternoon, we learned that Trump had pressured Ukrainian President Volodymyr Zelensky in a July 25 call to launch an investigation involving the Bidens. (The Wall Street Journal first reported that and said Trump pressed Zelensky on the matter about eight times)

Intelligence community Inspector General Michael Atkinson has reviewed the complaint and determined it was credible. Generally, that means there is corroboration beyond just the one source. Atkinson also determined that it was a matter of “urgent concern,” which is a legal threshold that requires notifying the relevant congressional committees. In this case, that would be the intelligence committees.

2. Why isn’t the administration sharing the whistleblower complaint?

Acting director of national intelligence Joseph Maguire has refused to share the complaint, and we learned Friday that the White House Office of Legal Counsel has been involved in efforts to keep it from Congress.

House Intelligence Committee Chairman Adam B. Schiff (D-Calif.) said Thursday that he understood that the Justice Department was involved in the decision but that he had not been given an answer as to whether the White House is also involved.

DNI general counsel Jason Klitenic said in a letter that the complaint “involves confidential and potentially privileged communications.” The Post reports that the White House has stopped short of asserting executive privilege over the complaint, but White House counsel Pat Cipollone has been trying to set up legal obstacles, such as claiming jurisdictional issues, to prevent Maguire from handing it over to Congress.

3. What recourse does Congress have?

This an unusual situation that breaks with traditional protocol, so, as The Fix’s Amber Phillips writes, there are limited tools at Schiff’s disposal. He has already activated one of them.

This week, he subpoenaed both the whistleblower complaint and documents related to the decision to withhold it. Schiff has said that if Maguire doesn’t comply, he will require him to testify in an open session, at which point lawmakers could pepper him with difficult questions. Maguire is scheduled to testify Thursday.

Schiff this week also said that he might sue over the matter and that his committee and the Democratic-controlled House could withhold funding from the DNI’s office until it relents.

4. How does this involve Ukraine?

We know little concretely besides that it involves the Eastern European country and the requests from Trump. But the picture is filling out.

The Trump team, and specifically his personal lawyer Rudolph W. Giuliani, has publicly telegraphed a desire to get the Ukrainian government to pursue certain investigations that might carry political benefits for Trump. These include matters involving convicted former Trump campaign chairman Paul Manafort, the 2016 campaign and the Biden family.

Giuliani this summer even planned a trip to Ukraine, which he readily admitted was intended to benefit Trump by pushing for particular investigations. “I’m asking them to do an investigation that they’re doing already and that other people are telling them to stop,” Giuliani told the New York Times in May. “And I’m going to give them reasons why they shouldn’t stop it because that information will be very, very helpful to my client, and may turn out to be helpful to my government.” Giuliani ended up canceling the trip amid an outcry.

We also know that Trump spoke with Zelensky, the Ukrainian president, on July 25 — 2½ weeks before the whistleblower filed the complaint — and that the administration was withholding $250 million in military aid for Ukraine in late August, before bipartisan pressure forced it to release the funding.

5. What do we know about Trump’s phone call with Zelensky on July 25?

Logically, this would seem likely to be the conversation at the heart of the complaint. Given the parties involved in the call — Trump and Zelensky — and its temporal proximity to the complaint, that would make sense.

Trump’s repeated request of Zelensky that Ukraine investigate the Bidens would form one portion of a potential quid pro quo, but our latest reporting is that Trump didn’t mention foreign aid on the call. So it’s not clear what was actually part of the “promise” the whistleblower alleges.

But Atkinson, in his closed-door testimony this week, also said the complaint involves multiple actions and no single communication.

The White House said July 25 that the call involved Trump congratulating Zelensky on his election win this year and that they “discussed ways to strengthen the relationship between the United States and Ukraine, including energy and economic cooperation.”

The Ukrainians, though, said at the time that Trump told Zelensky he was “convinced the new Ukrainian government will be able to quickly improve [the] image of Ukraine, [and] complete [the] investigation of corruption cases, which inhibited the interaction between Ukraine and the USA.”

That last phrase is particularly conspicuous, given what we know now.

6. Why is the Trump team so interested in Ukraine?

For a variety of perhaps unrelated reasons, Trump has eyed developments in Ukraine for potential political gain.

As Philip Bump wrote Friday, the first of these involved a Democratic National Committee consultant who sought information from Ukrainian officials about Manafort, who had previously done work for onetime Ukrainian President Viktor Yanukovych. This was held up as a counterargument to potential Trump campaign collusion with Russia — the idea being that Democrats might have also colluded, with Ukraine.

The other big one — and apparently the more significant one when it comes to what we see today — is the situation involving the Bidens. As The Post’s Michael Kranish and David L. Stern detailed in July, the vice president’s son, Hunter Biden, took a well-paying job on the board of Ukraine’s largest private gas company, Burisma Holdings, late in the Obama administration. That company had been under some scrutiny from Ukrainian Prosecutor General Viktor Shokin. Shokin was removed amid pressure from then-Vice President Biden and other Western leaders, who alleged that he wasn’t pursuing corruption cases seriously enough.

7. How substantial are the allegations against Joe and Hunter Biden?

The contention from Trump, Giuliani, et al., is that Biden was taking an action to benefit his son’s company. Shokin himself alleged to The Post “that the activities of Burisma, the involvement of his son, Hunter Biden, and the [prosecutor general’s office] investigators on his tail, are the only, I emphasize, the only motives for organizing my resignation.”

But Shokin’s contention is dubious, and it’s not clear that he had actually been scrutinizing Burisma at the time; one official said the probe had long been dormant. Shokin had also fallen out of favor with many other Western leaders, as well as with lawmakers in Ukraine, where he was the subject of a decisive vote of no confidence.

Neither of these cases involves readily apparent wrongdoing. Ukraine’s current prosecutor general told Bloomberg he had no evidence of anything illegal or corrupt by either Joe or Hunter Biden. But the Trump team seems to regard them as sleeping giants in the 2020 race — or at least issues that could be used to muddy the political waters with the leading Democratic candidate in the race (and the one who polls best against Trump).

8. Where do Joseph Maguire and the Office of the Director of National Intelligence fit into this?

Maguire’s defenders say he’s in a legitimate legal bind, because the law doesn’t countenance this conflict between a president’s executive privilege and the disclosure requirements regarding a whistleblower complaint.

Regardless of whether you sympathize with him, though, he finds himself in an inauspicious position. Trump named him acting DNI a little more than a month ago under slightly controversial circumstances. After it was announced that then-DNI Daniel Coats would be resigning, Trump bypassed Coats’s No. 2, Sue Gordon, who had extensive bipartisan support, in favor of Maguire as the acting DNI. (Gordon resigned and subtly protested the decision in a brief letter.) Maguire, a retired Navy admiral, was also a somewhat unorthodox pick for the job, given his lack of experience in the U.S. intelligence community.

The overlapping timelines of Coats’s resignation, Maguire’s elevation and the whistleblower complaint are also raising eyebrows. Trump announced the exit of Coats, with whom he occasionally clashed, on July 28. That’s three days after his call with Zelensky. Trump announced Maguire’s selection Aug. 8. Four days later, the whistleblower complaint was filed.

The practical impact is that Maguire, who was Senate-confirmed but for a different job, has been thrust into a high-profile position that now involves making a very difficult legal and political call for an intelligence community in which he isn’t exactly steeped.

9. How bad is this for Trump and his presidency?

That’s the other big question right now. It’s too early to know whether it will be proved that Trump did anything wrong. Even if we see the complaint, it’s not certain that things happened exactly as the whistleblower said they did. And just because Trump pushed for investigating the Bidens doesn’t mean there is a provable quid pro quo.

Any specific legal violations would depend on those details. Asking for foreign assistance is problematic in and of itself, but this is also the president who publicly asked for Russia to obtain Hillary Clinton’s emails in 2016 and has indicated repeatedly that he was open to foreign help. The more troubling possibility (and the one raised specifically by the “promise” allegation) is that this might involve outright government corruption — the trading of favors for personal gain. It has been suggested that such a situation could involve federal election law violations or even extortion.

Of course, even if Trump violated the law, we’re in the same position as we are with obstruction of justice and Michael Cohen’s campaign finance violation (in which Trump has been implicated but not accused of a crime). And that position is: Justice Department guidelines say a sitting president can’t be indicted, thus any remedy would be Congress’s responsibility, via potential impeachment proceedings.

The constitutional definition of an impeachable offense — “high crimes and misdemeanors” — is a subjective one that means basically whatever Congress determines it means. So the real question is whether serious wrongdoing by Trump in this case would rally public and political support in a way we haven’t yet seen for impeachment and/or removal from office.

In the background are other highly controversial things Trump has done, most notable being his potential obstruction of justice in the Russia investigation. But thus far, public support for impeachment is far short of a majority, and Republicans, who control the Senate and can easily prevent Trump’s removal from office, have shown no appetite for going down that road. Democrats have thus proceeded somewhat timidly. And with the 2020 election approaching, they might reason that the election would be the best way to decide how Trump is held accountable.

As far as that race goes, Trump finds himself in a tough spot. He has low approval ratings and trails most Democrats he potentially faces in 2020, including by double digits in the case of Biden. One more big scandal would seem to cement his underdog status, but there is plenty of time until November 2020.

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