Inspector General Notified Intelligence Committee that the Administration Was Withholding Whistleblower Complaint
Later that same day, September 9, Inspector General Atkinson sent a letter to Chairman Adam Schiff and Ranking Member Devin Nunes notifying them that an Intelligence Community whistleblower had filed a complaint with the ICIG on August 12.985 Pursuant to a statute governing whistleblower disclosures, the Inspector General—after a condensed, preliminary review—had determined that the complaint constituted an “urgent concern” and that its allegations appeared to be “credible.”986 The Inspector General’s September 9 letter did not disclose the substance or topic of the whistleblower complaint.
Contrary to uniform past practice and the clear requirements of the whistleblower statute, Acting DNI Maguire withheld the whistleblower complaint based on advice from the White House.987 Acting DNI Maguire also relied upon an unprecedented intervention by the Department of Justice into Intelligence Community whistleblower matters to overturn the ICIG’s determination based on a preliminary investigation.988
The White House had been aware of the whistleblower complaint weeks prior to the ICIG’s letter of September 9. 989 Acting DNI Maguire testified that, after receiving the whistleblower complaint from the Inspector General on August 26, his office contacted the White House Counsel’s Office for guidance.990
Consistent with Acting DNI Maguire’s testimony, the New York Times reported that in late August, Mr. Cipollone and National Security Council Legal Advisor John Eisenberg personally briefed President Trump about the complaint’s existence—and explained to the President that they believed the complaint could be withheld on executive privilege grounds.991 The report alleged that Mr. Cipollone and Mr. Eisenberg “told Mr. Trump they planned to ask the Justice Department’s Office of Legal Counsel to determine whether they had to disclose the complaint to lawmakers.”992
On September 10, Chairman Schiff wrote to Acting DNI Maguire to express his concern about the Acting DNI’s “unprecedented departure from past practice” in withholding the whistleblower complaint from the Congressional intelligence committees notwithstanding his “express obligations under the law” and the Inspector General’s determination.993 Chairman Schiff observed that the “failure to transmit to the Committee an urgent and credible whistleblower complaint, as required by law, raises the prospect that an urgent matter of a serious nature is being purposefully concealed from the Committee.”994
Also on September 10, Ambassador John Bolton resigned from his position as National Security Advisor. Ambassador Bolton’s deputy, Dr. Charles Kupperman, became the Acting National Security Advisor. The Committee was unable to determine if Ambassador Bolton’s departure related to the matters under investigation because neither he nor Dr. Kupperman agreed to appear for testimony as part of this inquiry.
On September 13, the Office of the Director of National Intelligence (ODNI) General Counsel informed the Committee that DOJ had overruled the ICIG’s determination, and that the ODNI could not transmit the complaint to the Committee at its discretion because it involved “potentially privileged communications by persons outside the Intelligence Community”—presumably presidential communications.995 In response, Chairman Schiff issued a subpoena to the Acting DNI on September 13 and announced to the public that ODNI was withholding a “credible” whistleblower complaint of “urgent concern.”996 Following intense pressure from the public and Congress, on September 25, the White House released the complaint to the intelligence committees and the July 25 call record to the public.997
President Trump Lifted the Hold on Military Assistance for Ukraine
On September 11—two days after the three Committees launched their investigation into President Trump’s scheme, and one day after Chairman Schiff requested that Acting DNI Maguire produce a copy of the whistleblower complaint—President Trump lifted the hold on military assistance for Ukraine.
On the evening of September 11, prior to lifting the hold, President Trump met with Vice President Mike Pence, Mr. Mulvaney, and Senator Portman to discuss the hold.998 Around 8:00 p.m. on September 11, the Chief of Staff’s office informed Dr. Kupperman that the hold had been lifted.999
Just like there was no official explanation for why the hold on Ukraine security assistance was implemented, numerous witnesses testified that they were not provided with a reason for why the hold was lifted on September 11.1000 For example, Deputy Assistant Secretary of Defense Laura Cooper testified that President Trump’s lifting of the hold “really came quite out of the blue…It was quite abrupt.”1001 Jennifer Williams, Special Advisor to the Vice President for Europe and Russia, testified that from the time when she first learned about the hold on July 3 until it was lifted on September 11, she never came to understand why President Trump ordered the hold.1002
OMB Deputy Associate Director of National Security Programs Mark Sandy, who was the senior career official overseeing the administration of some of the Ukraine military assistance, only learned of a possible rationale for the hold in early September—after the Acting DNI had informed the White House about the whistleblower complaint.1003 Mr. Sandy testified that he could not recall another instance “where a significant amount of assistance was being held up” and he “didn’t have a rationale for as long as I didn’t have a rationale in this case.”1004 However, in “early September,” approximately two months after President Trump had implemented the hold, and several weeks after the White House learned of the whistleblower complaint, Mr. Sandy received an email from OMB Associate Director of National Security Programs Michael Duffey. For the first time, it “attributed the hold to the President’s concern about other countries not contributing more to Ukraine” and requested “information on what additional countries were contributing to Ukraine.”1005
Mr. Sandy testified that he was not aware of any other countries committing to provide more financial assistance to Ukraine prior to the lifting of the hold on September 11.1006 According to Lt. Col. Vindman, none of the “facts on the ground” changed before the President lifted the hold.1007
After the Hold was Lifted, Congress was Forced to Pass a Law to Ensure All of the Military Aid Could Be Distributed to Ukraine
The lengthy delay created by the hold on Ukraine military assistance prevented the Department of Defense from spending all of the Congressionally-appropriated funds by the end of the fiscal year, which meant that the funds would expire on September 30 because unused funds do not roll over to the next fiscal year.1008 This confirmed the fears expressed by Ms. Cooper, Mr. Sandy, and others related to the illegal impoundment of Congressionally-mandated funding—concerns that were discussed in some depth within the relevant agencies in late July and throughout August.1009
Prior to the release of the funds, DOD’s internal analysis raised concerns that up to $100 million of military assistance could go unspent as a result of the hold imposed by the President.1010 Ultimately, approximately $35 million of Ukraine military assistance—14% of the total funds—remained unspent by the end of fiscal year 2019.1011 Typically, DOD averages between 2 and 5 percent unspent funds for similar programs, substantially less than the 14 percent left unspent in this case.1012
In order to ensure that Ukraine did not permanently lose $35 million of the critical military assistance frozen by the White House,1013 Congress passed a provision on September 27—three days before funds were set to expire—to ensure that the remaining $35 million in 2019 military assistance to Ukraine could be spent.1014 Ms. Cooper testified that such an act of Congress was unusual—indeed, she had never heard of funding being extended in this manner.1015
As of November 2019, Pentagon officials confirmed that the $35 million in security assistance originally held by the President and extended by Congress had still yet to be disbursed. When asked for an explanation, the Pentagon only confirmed that the funds had not yet been spent but declined to say why.1016
Pressu
re to Announce Investigations Continued After the Hold was Lifted
Before President Trump lifted the hold on security assistance, Ukrainian officials had relented to the American pressure campaign to announce the investigations and had scheduled President Zelensky to appear on CNN.1017 Even after President Trump lifted the hold on September 11, President Zelensky did not immediately cancel his planned CNN interview.1018
On September 12, Ambassador Taylor personally informed President Zelensky and the Ukrainian foreign minister that President Trump’s hold on military assistance had been lifted.1019 Ambassador Taylor remained concerned, however, that “there was some indication that there might still be a plan for the CNN interview in New York” during which President Zelensky would announce the investigations that President Trump wanted Ukraine to pursue.1020 Ambassador Taylor testified that he “wanted to be sure that that didn’t happen, so I addressed it with Zelensky’s staff.”1021
On September 13, a staff member at the U.S. Embassy in Kyiv texted Mr. Holmes to relay a message that “Sondland said the Zelensky interview is supposed to be today or Monday, and they plan to announce that a certain investigation that was ‘on hold’ will progress.”1022 The Embassy Kyiv staffer stated that he “did not know if this was decided or if Sondland was advocating for it. Apparently he’s been discussing this with Yermak.”1023
On September 13, during a meeting in President Zelensky’s office, Ukrainian presidential aide Andriy Yermak “looked uncomfortable” when Ambassador Taylor sought to confirm that there were no plans for President Zelensky to announce the investigations during a CNN interview.1024 Although President Zelensky’s National Security Advisor Oleksandr Danyliuk indicated that there were no plans for President Zelensky to do the CNN interview, Ambassador Taylor was still concerned after he and Mr. Holmes saw Mr. Yermak following the meeting.1025 According to Ambassador Taylor, Mr. Yermak’s “body language was such that it looked to me like he was still thinking they were going to make that statement.”1026 Mr. Holmes also recalled that when he and Ambassador Taylor ran into Mr. Yermak following the meeting, Ambassador Taylor “stressed the importance of staying out of U.S. politics and said he hoped no interview was planned,” but “Mr. Yermak shrugged in resignation and did not answer, as if to indicate he had no choice.”1027
That same day, September 13, President Zelensky reportedly met with CNN’s Fareed Zakaria, who was in Kyiv to moderate the Yalta European Strategy Conference.1028 During the meeting with Mr. Zakaria, President Zelensky did not cancel his planned CNN interview.1029
Conflicting advice prompted the Ukrainian foreign minister to observe in a meeting with Ambassador Volker, Ambassador Taylor, and Deputy Assistant Secretary of State George Kent, “You guys are sending us different messages in different channels.”1030
For example, at a September 14 meeting in Kyiv attended by Ambassador Volker, Mr. Yermak, and the Ukrainian foreign minister, Ambassador Volker stated that when the two Presidents finally meet, “it’s important that President Zelensky give the messages that we discussed before,” apparently referring to President Zelensky’s “willingness to open investigations in the two areas of interest to the President and that had been pushed previously by Rudy Giuliani.”1031 Ambassador Taylor, however, replied: “Don’t do that.”1032
On September 18 or 19, President Zelensky cancelled his scheduled interview with CNN.1033 Although President Zelensky did not publicly announce the investigations that President Trump wanted, he remains under pressure from President Trump, particularly because he requires diplomatic, financial, and military backing from the United States, the most powerful supporter of Ukraine. That pressure continues to this day. As Mr. Holmes testified:
[A]lthough the hold on the security assistance may have been lifted, there were still things they wanted that [the Ukrainians] weren’t getting, including a meeting with the President in the Oval Office. Whether the hold—the security assistance hold continued or not, Ukrainians understood that that’s something the President wanted, and they still wanted important things from the President.
And I think that continues to this day. I think they’re being very careful. They still need us now going forward. In fact, right now, President Zelensky is trying to arrange a summit meeting with President Putin in the coming weeks, his first face to face meeting with him to try to advance the peace process. He needs our support. He needs President Putin to understand that America supports Zelensky at the highest levels. So this doesn’t end with the lifting of the security assistance hold. Ukraine still needs us, and as I said, still fighting this war this very day.1034
Vice President Pence Spoke to President Zelensky
On September 18, approximately one week before President Trump was scheduled to meet with President Zelensky at the United Nations General Assembly in New York, Vice President Pence spoke with President Zelensky by telephone.1035 According to Ms. Williams, during the call, Vice President Pence “reiterat[ed] the release of the funds” and “ask[ed] a bit more about…how Zelensky’s efforts were going.”1036
On November 26, Ms. Williams submitted a classified addendum to her hearing testimony on November 19 related to this telephone call. According to Ms. Williams’ counsel, the Office of the Vice President informed Ms. Williams’ counsel that certain portions of the September 18 call, including the additional information in Ms. Williams’ addendum, are classified. The Committee has requested that the Office of the Vice President conduct a declassification review so that the Committee may share this additional information regarding the substance of the September 18 call publicly. On October 9, Vice President Pence told reporters, “I’d have no objection” to the White House releasing the transcript of his calls with President Zelensky and said that “we’re discussing that with White House counsel as we speak.”1037 In a November 7 interview with Fox Business, Vice President Pence reiterated, “I have no objection at all” to releasing records of his calls.1038
President Trump and Rudy Giuliani, Undeterred, Continued to Solicit Foreign Interference in Our Elections
On September 19, Rudy Giuliani was interviewed by Chris Cuomo on CNN. During the interview, Mr. Giuliani confirmed that he had urged Ukraine to investigate “the allegations that there was interference in the election of 2016, by the Ukrainians, for the benefit of Hillary Clinton[.]” When asked specifically if he had asked Ukraine to look into Vice President Biden, Mr. Giuliani replied immediately, “of course I did.”
Seconds later, Mr. Giuliani attempted to clarify his admission, insisting that he had not asked Ukraine to investigate Vice President Biden but instead “to look into the allegations that related to my client [President Trump], which tangentially involved Joe Biden in a massive bribery scheme.” Mr. Giuliani insisted that his conduct was appropriate, telling Mr. Cuomo later in the interview that “it is perfectly appropriate for a President to say to a leader of a foreign country, investigate this massive bribe…that was paid by a former Vice President.”1039
President Trump also has continued to publicly urge President Zelensky to launch an investigation of Vice President Biden and alleged 2016 election interference by Ukraine. On September 23, in a public press availability, President Trump stated:
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. I didn’t put any pressure on them whatsoever. You know why? Because they want to do the right thing.1040
On September 24, in public remarks upon arriving at the opening session of the U.N. General Assembly, President Trump stated: “What Joe Biden did for his son, that’s something they should be looking at.”1041
On September 25—in a joint public press availability with President Zelensky—President Trump stated that “I want him to do whatever he can” in reference to the investigation of the Biden family. He added, “Now, when Biden’s son walks away with millions of dollars from Ukraine, and he knows not
hing, and they’re paying him millions of dollars, that’s corruption.” President Trump added, “He [President Zelensky] was elected—I think, number one—on the basis of stopping corruption, which unfortunately has plagued Ukraine. And if he could do that, he’s doing, really, the whole world a big favor. I know—and I think he’s going to be successful.”1042
On September 30, during his remarks at the swearing-in ceremony of Labor Secretary Eugene Scalia, President Trump stated:
Now, the new President of Ukraine ran on the basis of no corruption. That’s how he got elected. And I believe that he really means it. But there was a lot of corruption having to do with the 2016 election against us. And we want to get to the bottom of it, and it’s very important that we do.1043
On October 2, in a public press availability, President Trump discussed the July 25 call with President Zelensky and stated that “the conversation was perfect; it couldn’t have been nicer.” He added:
The only thing that matters is the transcript of the actual conversation that I had with the President of Ukraine. It was perfect. We’re looking at congratulations. We’re looking at doing things together. And what are we looking at? We’re looking at corruption. And, in, I believe, 1999, there was a corruption act or a corruption bill passed between both—and signed—between both countries, where I have a duty to report corruption. And let me tell you something: Biden’s son is corrupt, and Biden is corrupt.1044
The Impeachment Report Page 24