Overwhelming Confirmation of Whistleblower Complaint: An Annotation

As the following analysis clearly demonstrates, an overwhelming percentage of the whistleblower’s complaint in Ukrainegate has been confirmed by U.S. government documents, witness statements, and independent investigative reports. We highlight all the key portions of the complaint that have been confirmed or corroborated, and we include links to the sources confirming or corroborating the information. The most significant sources include the official rough transcript of the July 25 call between President Trump and President Zelenskyy, text messages between three U.S. diplomats and Ukrainian officials, the written testimony of the then-US special envoy to Ukraine Paul Volker, and, finally, reliable news reports. It is also worth noting that the Inspector General for the Intelligence Community concluded the whistleblower’s report appeared credible after conducting a review including interviews with witnesses.

Text in blue font in the whistleblower’s complaint designates statements that have been confirmed or corroborated. Text in black font should not be considered untrue or refuted.

UNCLASSIFIED

August 12, 2019

The Honorable Richard Burr
Chairman
Select Committee on Intelligence
United States Senate

The Honorable Adam Schiff
Chairman
Permanent Select Committee on Intelligence
United States House of Representatives

 

Dear Chairman Burr and Chairman Schiff:

I am reporting an “urgent concern” in accordance with the procedures outlined in 50 U.S.C. 3033(k)(5)(A). This letter is UNCLASSIFIED when separated from the attachment.

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 President’s personal lawyer, Mr. Rudolph Giuliani, is a central figure in this effort. Attorney General Barr appears to be involved as well.[1]

[1] This is a general summary of the allegations contained in the complaint. As demonstrated below, each of these statements are confirmed or corroborated by other reliable sources, including the rough transcript of the July 25 call released by the White House.

  • Over the past four months, more than half a dozen U.S. officials have informed me of various facts related to this The information provided herein was relayed to me in the course of official interagency business. It is routine for U.S. officials with responsibility for a particular regional or functional portfolio to share such information with one another in order to inform policymaking and analysis.
  • I was not a direct witness to most of the events described. However, I found my colleagues’ accounts of these events to be credible because, in almost all cases, multiple officials recounted fact patterns that were consistent with one another. In addition, a variety of information consistent with these private accounts has been reported publicly.

I am deeply concerned that the actions described below 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 50 U.S.C. §3033(k)(5)(G). I am therefore fulfilling my duty to report this information, through proper legal channels, to the relevant authorities.

  • I am also concerned that these actions pose risks to U.S. national security and undermine the S. Government’s efforts to deter and counter foreign interference in U.S. elections.

To the best of my knowledge, the entirety of this statement is unclassified when separated from the classified enclosure. I have endeavored to apply the classification standards outlined in Executive Order (EO) 13526 and to separate out information that I know or have reason to believe is classified for national security purposes.[i]

  • If a classification marking is applied retroactively, I believe it is incumbent upon the classifying authority to explain why such a marking was applied, and to which specific information it pertains.

I.              The 25 July Presidential phone call

Early in the morning of 25 July, the President spoke by telephone with Ukrainian President Volodymyr Zelenskyy. I do not know which side initiated the call. This was the first publicly acknowledged call between the two leaders since a brief congratulatory call after Mr. Zelenskyy won the presidency on 21 April.[2]

[2] These are now a matter of public record, including the rough transcript of the July call, released by the White House.

Multiple White House officials with direct knowledge of the call informed me that, after an initial exchange of pleasantries, the President used the remainder of the call to advance his personal interests. Namely, he sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid. According to the White House officials who had direct knowledge of the call, the President pressured Mr. Zelenskyy to, inter alia[3]:

  • initiate or continue an investigation[ii] into the activities of former Vice President Joseph Biden and his son, Hunter Biden[4];
  • assist in purportedly uncovering that allegations of Russian interference in the 2016 U. presidential election originated in Ukraine, with a specific request that the Ukrainian leader locate and turn over servers used by the Democratic National Committee (DNC) and examined by the U.S. cyber security firm Crowdstrike,[iii] which initially reported that Russian hackers had penetrated the DNC’s networks in 2016[5]; and
  • meet or speak with two people the President named explicitly as his personal envoys onthese matters, Mr. Giuliani and Attorney General Barr, to whom the President referred multiple times in tandem.[6]

[3] The rough transcript of the call confirms that the President used the remainder of the conversation to press the Ukraine President Zelenskyy on these personal political matters.

[4] President Trump to President Zelinsky: “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.” White House rough transcript of July 25 call.

[5] President Trump to President Zelenskyy:

“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, 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…”

White House rough transcript of July 25 call.

[6] President Trump to President Zelenskky:

“I will ask [Giuliani] to call you along with the Attorney General.”
“I will have Mr. Giuliani give you a call and I am also going to have.Attorney General Barr call and we will get to· the bottom of it.”
“I will tell Rudy and Attorney General Barr to call.”

White House rough transcript of July 25 call.

The President also praised Ukraine’s Prosecutor General, Mr. Yuriy Lutsenko, and suggested that Mr. Zelenskyy might want to keep him in his position.[7] (Note: Starting in March 2019, Mr. Lutsenko made a series of public allegations—many of which he later walked back—about the Biden family’s activities in Ukraine, Ukrainian officials’ purported involvement in the 2016 U.S. election, and the activities of the U.S. Embassy in Kyiv. See Part IV for additional context.)[8]

[7] The White House’s rough transcript of the July 25 call is ambiguous as to whether President Trump is praising former Prosecutor General Viktor Shokin or the incumbent Prosecutor General Yuriy Lutsenko. Trump does not appear to propose retaining Lutsenko in his position. Trump’s statement in this portion of the conversation, however, contains an ellipsis, which may indicate statements made by President Trump that were omitted from the released transcript.

[8] See, for example, John Solomon, “Top Ukrainian justice official says US ambassador gave him a do not prosecute list,” The Hill, March 20, 2019 (Lutsenko’s making allegations); Ukraine Prosecutor General Lutsenko admits U.S. ambassador didn’t give him a do not prosecute list, Unian Information Agency, Apr. 18, 2019.

The White House officials who told me this information were deeply disturbed by what had transpired in the phone call. They told me that there was already a “discussion ongoing” with White House lawyers about how to treat the call because of the likelihood, in the officials’ retelling, that they had witnessed the President abuse his office for personal gain.[9]

[9] Ken Dilanian and Julia Ainsley, “CIA’s top lawyer made criminal referral on whistleblower’s complaint about Trump conduct,” NBC News, Oct. 4, 2019 (“[CIA General Counsel] called Eisenberg, the top NSC lawyer, officials said. He was already aware that people inside his agency believed something improper had occurred on the July 25 call with the Ukrainian president, officials said;” on Aug. 14, the NSC Legal Adviser and CIA General Counsel made a criminal referral to the Justice Department); Greg Miller, Josh Dawsey, Paul Sonne and Ellen Nakashima, “Giuliani pursued shadow Ukraine agenda as key foreign policy officials were sidelined,” Washington Post, Sept. 24, 2019 (“Among those who listened in on the call or were in a position to see a transcript, the president’s persistence with Zelensky on the corruption probe marked the crossing of a perilous threshold.”).

The Ukrainian side was the first to publicly acknowledge the phone call. On the evening of 25 July, a readout was posted on the website of the Ukrainian President that contained the following line (translation from original Russian-language readout):

  • “Donald Trump expressed his conviction that the new Ukrainian government will be able to quickly improve Ukraine’s image and complete the investigation of corruption cases that have held back cooperation between Ukraine and the United States.”[10]

[10] This is a matter of public record.

Aside from the above-mentioned “cases” purportedly dealing with the Biden family and the 2016 election, I was told by White House officials that no other “cases” were discussed.[11]

[11] This is an important point, and corroborated by the White House’s rough transcript of the phone call. No other cases were discussed.

Based on my understanding, there were approximately a dozen White House officials who listened to the call—a mixture of policy officials and duty officers in the White House Situation Room, as is customary. The officials I spoke with told me that participation in the call had not been restricted in advance because everyone expected it would be a “routine” call with a foreign leader. I do not know whether anyone was physically present with the President during the call.

  • In addition to White House personnel, I was told that a State Department official, Mr. T. Ulrich Brechbuhl, also listened in on the call.
  • I was not the only non-White House official to receive a readout of the call. Based on my understanding, multiple State Department and Intelligence Community officials were also briefed on the contents of the call as outlined above.[12]

[12] It has been confirmed that multiple officials were on the call (including Secretary of State Mike Pompeo and Vice President Mike Pence’s national security adviser retired Lt. Gen. Keith Kellogg, and that multiple officials received a readout of some aspects of the call including Vice President Pence and US special envoy to Ukraine Paul Volker. It has not been publicly confirmed whether Ulrich Brechbuhl was on the call. Volker Testimony; Jessica Donati, “Pompeo Confirms Listening to Trump-Zelensky Phone Call in July,” Wall Street Journal, Oct. 2, 2019; Greg Miller, Greg Jaffe and Ashley Parker, “Trump involved Pence in efforts to pressure Ukraine’s leader,” Washington Post, Oct. 2, 2019

II.           Efforts to restrict access to records related to the call

In the days following the phone call, I learned from multiple U.S. officials that senior White House officials had intervened to “lock down” all records of the phone call,[13] especially the official word-for-word transcript of the call that was produced—as is customary—by the White House Situation Room.[14] This set of actions underscored to me that White House officials understood the gravity of what had transpired in the call.

[13] See the confirmation and corroboration in the sources accompanying the bullet points immediately below.

[14] On Oct. 2, President Trump referred to a “word-for-word, comma-for-comma” transcription of the conversation verbatim. “This is an exact word-for-word transcript of the conversation, taken by very talented stenographers,” he added. Doubts have emerged whether the rough transcript released by the White House is partial and not the complete word-for-word version. Carol D. Leonnig, Craig Timberg and Drew Harwell, “Odd markings, ellipses fuel doubts about the rough transcript of Trump’s Ukraine Call,” Washington Post, Oct. 2, 2019. (“White House officials previously had portrayed the document as not a verbatim transcription but rather a summary”).

  • White House officials told me that they were “directed” by White House lawyers to remove the electronic transcript from the computer system in which such transcripts are typically stored for coordination, finalization, and distribution to Cabinet-level officials.
  • Instead, the transcript was loaded into a separate electronic system that is otherwise used to store and handle classified information of an especially sensitive nature. One White House official described this act as an abuse of this electronic system because the call did not contain anything remotely sensitive from a national security perspective.

I do not know whether similar measures were taken to restrict access to other records of the call, such as contemporaneous handwritten notes taken by those who listened in.[15]

[15] Pamela Brown, “White House says lawyers directed moving Ukraine transcript to highly secure system,” CNN, Sept. 27, 2019; Sadie Gurman, Rebecca Ballhaus and Warren P. Strobel, “Justice Department Got Early Word of Concerns About Trump’s Ukraine Call — Decision to move record of call to restricted computer system came from lawyers on the White House National Security Council,” Wall Street Journal, Sept. 27, 2019.

III.        Ongoing concerns

On 26 July, a day after the call, U.S. Special Representative for Ukraine Negotiations Kurt Volker visited Kyiv and met with President Zelenskyy and a variety of Ukrainian political figures. Ambassador Volker was accompanied in his meetings by U.S. Ambassador to the European Union Gordon Sondland.[16]

[16] This is a matter of public record.

Based on multiple readouts of these meetings recounted to me by various U.S. officials, Ambassadors Volker and Sondland reportedly provided advice to the Ukrainian leadership about how to “navigate” the demands that the President had made of Mr. Zelenskyy.[17]

[17] Text messages between Volker, Sondland, and Taylor confirm the whistleblower’s complaint, though these texts are not isolated to the July 26 meeting. All three US diplomats were present at the July 26 meeting.

I also learned from multiple U.S. officials that, on or about 2 August, Mr. Giuliani reportedly traveled to Madrid to meet with one of President Zelenskyy’ s advisers, Andriy Yermak. The officials characterized this meeting, which was not reported publicly at the time, as a “direct follow-up” to the President’s call with Mr. Zelenskyy about the “cases” they had discussed.[18]

[18] Volker Testimony (“Mr. Yermak was concerned that he had not heard back from Mayor Giuliani about scheduling the meeting in Madrid, so I stepped in again to put them back in touch so the meeting would be scheduled. It took place on August 2, 2019.”); cf. Volker Testimony (“After they met, both Mayor Giuliani and Mr. Yermak called me to give me their impressions. Both were positive. Neither said anything about Vice President Biden. Mayor Giuliani said that he had stressed the importance of Ukraine conducting investigations into what happened in the past.”)

  • Separately, multiple S. officials told me that Mr. Giuliani had reportedly privately reached out to a variety of other Zelenskyy advisers, including Chief of Staff Andriy Bohdan and Acting Chairman of the Security Service of Ukraine Ivan Bakanov.[iv][19]
  • I do not know whether those officials met or spoke with Mr. Giuliani, but I was told separately by multiple U.S. officials that Mr. Yermak and Mr. Bakanov intended to travel to Washington in mid-August.[20]

[19] Aubrey Belford and Veronika Melkozerova, “Meet the Florida Duo Helping Giuliani Investigate for Trump in Ukraine,” Organized Crime and Corruption Reporting Project (OCCRP), July 22, 2019 (“Though Giuliani cancelled his trip, Parnas and Fruman managed to hold meetings with two figures close to Zelensky: Serhiy Shefir, who has since been appointed as an aide to the president, and Ivan Bakanov, now acting head of Ukraine’s [security services]. The meetings failed to lead to a meeting between Giuliani and Zelensky.”); Giuliani’s Hayes Brown and Roger Sollenberger, “Giuliani Claims The State Department Warned Him Not To Meet With A Top Ukrainian Official,” Buzzfeed News, Oct. 2, 2019 (“The State Department warned the president’s personal lawyer against meeting with of Ukrainian President Volodymyr Zelensky’s top advisers and others close to him. … In particular, Giuliani was briefed by State Department officials to avoid Andriy Bohdan, Zelensky’s chief of staff, [Giuliani] said in a phone interview.”).

[20] Gregory Korte, Bloomberg News, Sept. 26, 2019 (“The two Ukrainian officials have visited Washington several times in recent weeks in an effort to arrange a visit by Zelenskiy to the White House, Radio Free Europe reports.”).

On 9 August, the President told reporters: “I think [President Zelenskyy] is going to make a deal with President Putin, and he will be invited to the White House. And we look forward to seeing him. He’s already been invited to the White House, and he wants to come. And I think he will. He’s a very reasonable guy. He wants to see peace in Ukraine, and I think he will be coming very soon, actually.”[21]

[21] This is a matter of public record.

IV.         Circumstances leading up to the 25 July Presidential phone call

Beginning in late March 2019, a series of articles appeared in an online publication called The Hill. In these articles, several Ukrainian officials—most notably, Prosecutor General Yuriy Lutsenko—made a series of allegations against other Ukrainian officials and current and formerofficials. Mr. Lutsenko and his colleagues alleged, inter alia:

  • that they possessed evidence that Ukrainian officials—namely, Head of the National Anticorruption Bureau of Ukraine Artem Sytnyk and Member of Parliament Serhiy Leshchenko—had “interfered” in the 2016 U.S. presidential election, allegedly in collaboration with the DNC and the S. Embassy in Kyiv;[v]
  • that the U.S. Embassy in Kyiv—specifically, U.S. Ambassador Marie Yovanovitch , who had criticized Mr. Lutsenko’ s organization for its poor record on fighting corruption—had allegedly obstructed Ukrainian law enforcement agencies’ pursuit of corruption cases, including by providing a “do not prosecute” list, and had blocked Ukrainian prosecutors from traveling to the United States expressly to prevent them from delivering their “evidence” about the 2016 U.S. election;[vi] and
  • that former Vice President Biden had pressured former Ukrainian President Petro Poroshenko in 2016 to fire then Ukrainian Prosecutor General Viktor Shokin in order to quash a purported criminal probe into Burisma Holdings, a Ukrainian energy company on whose board the former Vice President’s son, Hunter, [vii]

In several public comments,[viii] Mr. Lutsenko also stated that he wished to communicate directly with Attorney General Barr on these matters.[ix][22]

[22] These are contained in the following Opinion pieces: John Solomon, “Senior Ukrainian official says he’s opened probe into US election interference,” The Hill, March 20, 2019; John Solomon, “Top Ukrainian justice official says US ambassador gave him a do not prosecute list,” The Hill, March 20, 2019; John Solomon, “Ukrainian Embassy confirms DNC contractor solicited Trump dirt in 2016,” The Hill, May 2, 2019. N.B. In addition to readily available Western press reports cited in the whistleblower complaint’s footnotes walking back these claims, fn 6 refers to a Ukrainain news article (in Ukranian and Russian) in which Lutsenko states that he asked the American ambassador for a “do not prosecute” list.)

The allegations by Mr. Lutsenko came on the eve of the first round of Ukraine’s presidential election on 31 March. By that time, Mr. Lutsenko’s political patron, President Poroshenko, was trailing Mr. Zelenskyy in the polls and appeared likely to be defeated. Mr. Zelenskyy had made known his desire to replace Mr. Lutsenko as Prosecutor General. On 21 April, Mr. Poroshenko lost the runoff to Mr. Zelenskyy by a landslide. See Enclosure for additional information.[23]

[23] See, for example, “Zelensky: Lutsenko from old team, we will appoint new people,” Interfax-Ukraine News Agency, Apr. 21, 2019.

  • It was also publicly reported that Mr. Giuliani had met on at least two occasions with Mr. Lutsenko: once in New York in late January and again in Warsaw in mid-February. In addition, it was publicly reported that Mr. Giuliani had spoken in late 2018 to former Prosecutor General Shokin, in a Skype call arranged by two associates of Mr. Giuliani.[x]
  • On 25 April in an interview with Fox News, the President called Mr. Lutsenko ‘s claims “big” and “incredible” and stated that the Attorney General “would want to see this.”[24]

[24] These are a matter of public record.

On or about 29 April, I learned from U.S. officials with direct knowledge of the situation that Ambassador Yovanovitch had been suddenly recalled to Washington by senior State Department officials for “consultations” and would most likely be removed from her position.[25]

[25] Rebecca Ballhaus, Michael C. Bender and Vivian Salama, Wall Street Journal, Oct. 3, 2019 (“President Trump ordered the removal of the ambassador to Ukraine after months of complaints from allies outside the administration, including his personal lawyer Rudy Giuliani, that she was undermining him abroad and obstructing efforts to persuade Kyiv to investigate former Vice President Joe Biden;” “State Department officials were told this spring that Ms. Yovanovitch’s removal was a priority for the president”).

  • Around the same time, I also learned from a U.S. official that “associates” of Mr.
    Giuliani were trying to make contact with the incoming Zelenskyy team.[xi][26]
  • On 6 May, the State Department announced that Ambassador Yovanovitch would be ending her assignment in Kyiv “as planned.”[27]
  • However, several U.S. officials told me that, in fact, her tour was curtailed because of pressure stemming from Mr. Lutsenko’s allegations.[28]

[26] Aubrey Belford and Veronika Melkozerova, “Meet the Florida Duo Helping Giuliani Investigate for Trump in Ukraine,” Organized Crime and Corruption Reporting Project (OCCRP), July 22, 2019; Andrew E. Kramer, “Two Blows Are Dealt to Ukrainian Leader’s Clean-Government Image,” New York Times, Sept. 27, 2019 (“Mr. Giuliani’s outreach had focused mostly on a faction in Mr. Zelensky’s government that includes his friends from the comedy industry and the associates of a Ukrainian billionaire, Ihor Kolomoisky, a former business partner of Mr. Zelensky’s.”).

[27] This is a matter of public record.

[28] Rebecca Ballhaus, Michael C. Bender and Vivian Salama, Wall Street Journal, Oct. 3, 2019 (“President Trump ordered the removal of the ambassador to Ukraine after months of complaints from allies outside the administration, including his personal lawyer Rudy Giuliani, that she was undermining him abroad and obstructing efforts to persuade Kyiv to investigate former Vice President Joe Biden;” “Mr. Giuliani said he brought concerns about the ambassador to the president in the weeks following his meetings with Mr. Lutsenko.”).

Mr. Giuliani subsequently stated in an interview with a Ukrainian journalist published on 14 May that Ambassador Yovanovitch was “removed … because she was part of the efforts against the President.”[29]

[29] This is a matter of public record.

On 9 May, The New York Times reported that Mr. Giuliani planned to travel to Ukraine to press the Ukrainian government to pursue investigations that would help the President in his 2020 reelection bid.

  • In his multitude of public statements leading up to and in the wake of the publication of this article, Mr. Giuliani confirmed that he was focused on encouraging Ukrainian authorities to pursue investigations into alleged Ukrainian interference in the 2016 U.S. election and alleged wrongdoing by the Biden family.[xii]
  • On the afternoon of 10 May, the President stated in an interview with Politico that he planned to speak with Mr. Giuliani about the trip.
  • A few hours later, Giuliani publicly canceled his trip, claiming that Mr. Zelenskyy was “surrounded by enemies of the [U.S.] President… and of the United States.”[30]

[30] These are all matters of public record.

On 11 May, Mr. Lutsenko met for two hours with President-elect Zelenskyy, according to a public account given several days later by Mr. Lutsenko. Mr. Lutsenko publicly stated that he had told Mr. Zelenskyy that he wished to remain as Prosecutor General.[31]

[31] Natalia Lebed, “Nowhere man: Ukraine’s Prosecutor General Lutsenko wants to join Zelensky’s team,” 112.UA News Agency, May 13, 2019.

Starting in mid-May, I heard from multiple U.S. officials that they were deeply concerned by what they viewed as Mr. Giuliani’s circumvention of national security decisionmaking processes to engage with Ukrainian officials and relay messages back and forth between Kyiv and the President.[32]

[32] Greg Miller, Josh Dawsey, Paul Sonne and Ellen Nakashima, “Giuliani pursued shadow Ukraine agenda as key foreign policy officials were sidelined,” Washington Post, Sept. 24, 2019.

These officials also told me:

  • that State Department officials, including Ambassadors Volker and Sondland, had spoken with Mr. Giuliani in an attempt to “contain the damage” to S. national security; and
  • that Ambassadors Volker and Sondland during this time period met with members of the new Ukrainian administration and, in addition to discussing policy matters, sought to help Ukrainian leaders understand and respond to the differing messages they were receiving from official U.S. channels on-the-one-hand, and from Mr. Giuliani on the other.[33]

[33] The whistleblower’s complaint is corroborated by Ambassador Volker’s testimony to Congress; text messages between Ambassadors Volker, Taylor, and Taylor; and investigate news reports. It is not yet clear, however, whether Ambassador Sondland helped support Giuliani’s efforts rather than counteracting them. See, for example, Ambassador Volker Testimony (“I also made clear to the Ukrainians, on a number of occasions, that Mayor Giuliani is a private citizen and the President’s personal lawyer, and that he does not represent the United States government.”); (“I learned that former New York Mayor Rudy Giuliani planned to travel to Ukraine to look into these accusations. I reached out to brief him before his visit – specifically, to tell him that Lutsenko is not credible and … [Zelenskyy] was sincerely committed to reform and to fighting corruption in Ukraine.”); (“Despite the positive news and recommendations being conveyed by this official delegation about the new President, President Trump … was clearly receiving other information from other sources, including Mayor Giuliani, that was more negative, causing him to retain this negative view.”).

During this same timeframe, multiple U.S. officials told me that the Ukrainian leadership was led to believe that a meeting or phone call between the President and President Zelenskyy would depend on whether Zelenskyy showed willingness to “play ball” on the issues that had been publicly aired by Mr. Lutsenko and Mr. Giuliani. (Note: This was the general understanding of the state of affairs as conveyed to me by U.S. officials from late May into early July. I do not know who delivered this message to the Ukrainian leadership, or when.) See Enclosure for additional information.[34]

[34] At least three sources confirm or corroborate these statements:

1. Volker, Taylor and Sondland text message:

“[7/19/ 19, 7:01:22 PM] Good. Had breakfast with Rudy this morning- teeing up call w Yermak Monday. Must have helped. Most impt is for Zelensky to say that he will help investigation- and address any specific personnel issues- if there are any”

2. Volker, Taylor and Sondland text message:

[7 /21/19, 1 :45:54 AM] Bill Taylor: Gordon, one thing Kurt and I talked about yesterday was Sasha Danyliuk’s point that President Zelenskyy is sensitive about Ukraine being taken seriously, not merely as an instrument in Washington domestic, reelection politics.

[7/21/19, 4:45:44 AM] Gordon Sandland: Absolutely, but we need to get the conversation started and the relationship built, irrespective of the pretext. I am worried about the alternative.

3. Alan Cullison, Georgi Kantchev, Thomas Grove and James Marson, “In Months Before Trump Call, Ukraine Officials Sweated White House Pressure,” Wall Street Journal, Oct. 4. 2019 (“Kurt Volker, then the U.S. government’s special representative to Ukraine, began laying the groundwork for a longer phone call between Messrs. Trump and Zelensky, where it was clear to participants that Mr. Giuliani’s investigations would be on the agenda.”).

Shortly after President Zelenskyy’ s inauguration, it was publicly reported that Mr. Giuliani met with two other Ukrainian officials: Ukraine’s Special Anticorruption Prosecutor, Mr. Nazar Kholodnytskyy,[35] and a former Ukrainian diplomat named Andriy Telizhenko.[36]

[35] John Hudson, “Giuliani’s role as unofficial envoy faces scrutiny with rough transcript release,” Washington Post, September 25, 2019.

[36] Josh Dawsey and David L. Stern, “Giuliani meets with former diplomat as he continues to press Ukraine inquiries,” Washington Post, May 24, 2019.

Both Mr. Kholodnytskyy and Mr. Telizhenko are allies of Mr. Lutsenko and made similar allegations in the above-mentioned series of articles in The Hill.[37]

[37] This is a matter of public record.

On 13 June, the President told ABC’s George Stephanopoulos that he would accept damaging information on his political rivals from a foreign government.

On 21 June, Mr. Giuliani tweeted: “New Pres of Ukraine still silent on investigation of Ukrainian interference in 2016 and alleged Biden bribery of Poroshenko. Time for leadership and investigate both if you want to purge how Ukraine was abused by Hillary and Clinton people.”[38]

[38] These are matters of public record.

In mid-July, I learned of a sudden change of policy with respect to U.S. assistance for Ukraine. See Enclosure for additional information.[39]

[39] See discussion in Enclosure.

ENCLOSURE:            Classified appendix

 

(U) CLASSIFIED APPENDIX

(U) Supplementary classified information is provided as follows:

(U) Additional information related to Section II

(TS/) According to multiple White House officials I spoke with, the transcript of the President’s call with President Zelenskyy was placed into a computer system managed directly by the National Security Council (NSC) Directorate for Intelligence Programs. This is·a standalone computer system reserved for codeword-level intelligence information, such as covert action.[40] According to information I received from White House officials, some officials voiced concerns internally that this would be an abuse of the system and was not consistent with the responsibilities of the Directorate for Intelligence Programs.[41] According to White House officials I spoke with, this was “not the first time” under this Administration that a Presidential transcript was placed into this codeword-level system solely for the purpose of protecting politically sensitive—rather than national security sensitive—information.[42]

[40] Pamela Brown, “White House says lawyers directed moving Ukraine transcript to highly secure system,” CNN, Sept. 27, 2019; Sadie Gurman, Rebecca Ballhaus and Warren P. Strobel, “Justice Department Got Early Word of Concerns About Trump’s Ukraine Call — Decision to move record of call to restricted computer system came from lawyers on the White House National Security Council,” Wall Street Journal, Sept. 27, 2019.

[41] Devlin Barrett, Matt Zapotosky, Carol D. Leonnig and Shane Harris, Trump offered Ukrainian president Justice Dept. help in an investigation of Biden, memo shows,” Washington Post, Sept, 26, 2019 (“what officials did with Trump’s July 25 call with Zelensky … alarmed the intelligence community inspector general and prompted him to request that the White House retain records of the Zelensky call”).

[42] Julian E. Barnes, Michael Crowley, Matthew Rosenberg and Mark Mazzetti. “White House Classified Computer System Is Used to Hold Transcripts of Sensitive Calls,” New York Times, Sept. 27, 2019 (updated Sept. 29, 2019).

(U) Additional information related to Section IV

(S/) I would like to expand upon two issues mentioned in Section IV that might have a connection with the overall effort to pressure the Ukrainian leadership. As I do not know definitively whether the below-mentioned decisions are connected to the broader efforts I describe, I have chosen to include them in the classified annex. If they indeed represent genuine policy deliberations and decisions formulated to advance U.S. foreign policy and national security, one might be able to make a reasonable case that the facts are classified.

(S/) I learned from U.S. officials that, on or around 14 May, the President instructed Vice President Pence to cancel his planned travel to Ukraine to attend President Zelenskyy’ s inauguration on 20 May; Secretary of Energy Rick Perry led the delegation instead.[43] According to these officials, it was also “made clear” to them that the President did not want to meet with Mr. Zelenskyy until he saw how Zeienskyy “chose to act” in office. I do not know how this guidance was communicated, or by whom. I also do not know whether this action was connected with the broader understanding, described in the unclassified letter, that a meeting or phone call between the President and President Zelenskyy would depend on whether Zelenskyy showed willingness to “play ball” on the issues that had been publicly aired by Mr. Lutsenko and Mr. Giuliani.[44]

[43] Greg Miller, Greg Jaffe and Ashley Parker, “Trump involved Pence in efforts to pressure Ukraine’s leader,” Washington Post, Oct. 2, 2019  (“Trump instructed Pence not to attend the inauguration of Ukrainian President Volodymyr Zelensky in May — an event White House officials had pushed to put on the vice president’s calendar — when Ukraine’s new leader was seeking recognition and support from Washington, the officials said.”)

[44] Text messages between Volker, Sondland, and Taylor, including, for example:

[7/25/19, 8:36:45 AM] Kurt Volker: Good lunch – thanks. Heard from White House-assuming President Z convinces trump he will investigate I “get to the bottom of what happened” in 2016, we will nail down date for visit to Washington.”

See also President Zelenskyy’s senior aide Andrey Yermak’s text message to Volker:

[8/10/ 19, 5:42:10 PM] Andrey Yermak: “Once we have a date, will call for a press briefing, announcing upcoming visit and outlining vision for the reboot of USUKRAINE relationship, including among other things Burisma and election meddling in investigations.”

See also, for example, Alan Cullison, Georgi Kantchev, Thomas Grove and James Marson, “In Months Before Trump Call, Ukraine Officials Sweated White House Pressure — The administration in Kyiv felt it had to accede to White House wishes in order to secure a summit,” Wall Street Journal, Oct. 4, 2019.

  • (S/) On 18 July, an Office of Management and Budget (OMB) official informed Departments and Agencies that the President “earlier that month” had issued instructions to suspend all U.S. security assistance to Ukraine.[45] Neither OMB nor the NSC staff knew why this instruction had been issued.[46] During interagency meetings on 23 July and 26 July, OMB officials again stated explicitly that the instruction to suspend this assistance had come directly from the President, but they still were unaware of a policy rationale. As of early August, I heard from U. officials that some Ukrainian officials were aware that U.S..aid might be in jeopardy, but I do not know how or when they learned of it.[47]

[45] The whistleblower’s complaint is dated August 12, 2019. The first public press report on the suspension of the aid was on August 28, 2019. Caitlin Emma and Connot O’Brien, “Trump holds up Ukraine military aid meant to confront Russia,” Politico, Aug. 28, 2019 (updated Aug. 29, 2019).

[46] See for example, Greg Miller, Josh Dawsey, Paul Sonne and Ellen Nakashima, “Giuliani pursued shadow Ukraine agenda as key foreign policy officials were sidelined,” Washington Post, Sept. 24, 2019 (“Officials were told that the money was being blocked by the Office of Management and Budget, without any accompanying explanation. ‘It was bizarre’ the official said.”); Volker Testimony (“No reason was given.”).

[47] Betsy Klein, “Trump admits he delayed Ukraine aid but claims it was unrelated to Biden,” CNN, Sept. 24, 2019.

– – – – – – – – – – – –
[i] Apart from the information in the Enclosure, it is my belief that none of the information contained herein meets the definition of “classified information” outlined in EO 13526, Part l, Section 1.1. There is ample open-source information about the efforts I describe below, including statements by the President and Mr. Giuliani. In addition, based on my personal observations, there is discretion with respect to the classification of private comments by or instructions from the President, including his communications with foreign leaders; information that is not related to U.S. foreign policy or national security—such as the information contained in this document, when separated from the Enclosure—is generally treated as unclassified. I also believe that applying a classification marking to this information would violate EO 13526, Part 1, Section 1.7, which states: “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; [or] (2) prevent embarrassment to a person, organization, or agency.”

[ii] It is unclear whether such a Ukrainian investigation exists. See Footnote #7 for additional information.

[iii] I do not know why the President associates these servers with Ukraine. (See, for example, his comments to Fox News on 20 July: “And Ukraine. Take a look at Ukraine. How come the FBI didn’t take this server? Podesta told them to get out. He said, get out. So, how come the FBI didn’t take the server from the DNC?”).

[iv] In a report published by the Organized Crime and Corruption Reporting Project (OCCRP) on 22 July, two associates of Mr. Giuliani reportedly traveled to Kyiv in May 2019 and met with Mr. Bakanov and another close Zelenskyy adviser, Mr. Serhiy Shefir.

[v] Mr. Sytnyk and Mr. Leshchenko are two of Mr. Lutsenko’s main domestic rivals. Mr. Lutsenko has no legal training and has been widely criticized in Ukraine for politicizing criminal probes and using his tenure as Prosecutor General to protect corrupt Ukrainian officials. He has publicly feuded with Mr. Sytnyk, who heads Ukraine’s only competent anticorruption body, and with Mr. Leshchenko, a former investigative journalist who has repeatedly criticized Mr. Lutsenko’s record. In December 2018, a Ukrainian court upheld a complaint by a Member of Parliament, Mr. Boryslav Rozenblat, who alleged that Mr. Sytnyk and Mr. Leshchenko had “interfered” in the 2016  U.S. election by publicizing a document detailing corrupt payments made by former Ukrainian President Viktor Yanukovych before his ouster in 2014. Mr. Rozenblat had originally filed the motion in late 2017 after attempting to flee Ukraine amid an investigation into his taking of a large bribe. On 16 July 2019, Mr. Leshchenko publicly stated that a Ukrainian court had overturned the lower court’s decision.

[vi] Mr. Lutsenko later told Ukrainian news outlet The Babel on 17 April that Ambassador Yovanovitch had never provided such a list, and that he was, in fact, the one who requested such a list.

[vii] Mr. Lutsenko later told Bloomberg on 16 May that former Vice President Biden and his son were not subject to any current Ukrainian investigations, and that he had no evidence against them. Other senior Ukrainian officials also contested his original allegations; one former senior Ukrainian prosecutor told Bloomberg on 7 May that Mr. Shokin in fact was not investigating Burisma at the time of his removal in 2016.

[viii] See, for example, Mr. Lutsenko’s comments to The Hill on 1 and 7 April and his interview with The Babel on 17 April, in which he stated that he had spoken with Mr. Giuliani about arranging contact with Attorney General Barr.

[ix] In May, Attorney General Barr announced that he was initiating a probe into the ” origins” of the Russia investigation. According to the above-referenced OCCRP report (22 July), two associates of Mr. Giuliani claimed to be working with Ukrainian officials to uncover information that would become part of this inquiry. In an interview with Fox News on 8 August, Mr. Giuliani claimed that Mr. John Durham, whom Attorney General Barr designated to lead this probe, was “spending a lot of time in Europe” because he was “investigating Ukraine.” I do not know the extent to which, if at all, Mr. Giuliani is directly coordinating his efforts on Ukraine with Attorney General Barr or Mr. Durham.

[x] See, for example, the above-referenced articles in Bloomberg (16 May) and OCCRP (22 July).

[xi] I do not know whether these associates of Mr. Giuliani were the same individuals named in the 22 July report by OCCRP, referenced above.

[xii] See, for example, Mr. Giuliani’s appearance on Fox News on 6 April and his tweets on 23 April and 10 May. In his interview with The New York Times, Mr. Giuliani stated that the President “basically knows what I’m doing, sure, as his lawyer.” Mr. Giuliani also stated: “We’re not meddling in an election, we’ re meddling in an investigation, which we have a right to do… There’s nothing illegal about it. . . Somebody could say it’s improper. And this isn’t foreign policy – I’m asking them to do an investigation that they’re doing already and that other people are telling them to stop. 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.”

  

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About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).

John T. Nelson

Legal Fellow at Just Security, J.D. candidate at Yale Law School, former Research Associate at the Council on Foreign Relations, former Aide to Henry Kissinger, former Fulbright Scholar in Russia