The Whistleblower Complaint

Episode Notes

Transcript

Lawyer 2 Lawyer: – Law News and Legal Topics

The Whistleblower Complaint

10/04/2019

 

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John R. Phillips: I’ll tell you, my reading is and everybody I know who reading it, it is very incriminating and the other comments that have been made. Well, you know, this person whoever it was, didn’t have first-hand information and here say, if that complaint was very well-written, very professionally done, it was thorough, it’s exactly what was intended by the legislation. Gather the information, turn it over to the appropriate authorities and do it all step by step as this Whistleblower has done.

 

Bradley P. Moss: If there was anything of substance, anything of merit to the claims that Hunter Biden or Joe Biden broke any laws, the FBI is fully capable of investigating and prosecuting that. They don’t need the president pushing foreign leader to personally investigate the president’s political opponents. That’s an abuse of authority and that’s the problem that was outlined in the complaint whether or not Congress use that as sufficient and warranting impeachment and removal is a political decision that is beyond the interests or pay grade of the Whistleblower.

 

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Well, on August 12, 2019 an unnamed Whistleblower filed a complaint surrounding information they received from other officials regarding a July 25^th phone call between President Trump and Ukrainian President Solinsky. In the Whistleblower’s complaint it states that “in the course of my official duties I have received information from multiple US 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 US election”.

 

This complaint has led to an instigation of an impeachment inquiry into President Trump by the House of Representatives. The release of the complaint, the identity of the Whistleblower and an impeachment inquiry is now rocking DC in the current administration.

 

Just this week attorney Andrew Bakaj, one of the Whistleblower’s attorneys tweeted “The Intel Community Whistleblower is entitled to anonymity. Law and policy support this, and the individual is not to be retaliated against. Doing so is a violation of federal law.”

 

Well, today on Lawyer 2 Lawyer, we’re going to spotlight Whistleblowers or take a look at their rights and the legal mechanisms in place to protect them and with these in mind closely examining the latest developments in this ongoing story.

 

To do that we’ve got a great show for you today. Our first guest is John R. Phillips, a founding partner of Phillips & Cohen, nationally recognized authority on whistleblower cases.

 

Attorney Phillips served for four years as the US Ambassador to Italy and the Republic of San Marino after being appointed by President Obama. He retired from the firm in 2013 to accept the ambassadorship appointment and rejoined in 2017.

 

And Mr. Phillips was also the key architect of the modern-day False Claims Act which gives whistleblowers a way to stop fraud against the government and be rewarded and protected for doing so.

 

Welcome to the show, John!

 

John R. Phillips: Thank you! Thank you for inviting me!

 

1. Craig Williams: And our next guest is a returning guest attorney Bradley P. Moss from the Law Office of Mark S. Zaid. Brad specializes in litigation on matters relating to national security, Whistleblower Law, Federal Employment and Security Clearance Law, as well as the Freedom of Information Act and Privacy Act.

 

In addition, Bradley addresses pending policy and legal issues in the national security and government transparency arena.

 

Welcome back to the show, Bradley.

 

Bradley P. Moss: Thank you! Happy to always join.

 

(00:05:01)

 

1. Craig Williams: Well, John, let’s start with you. I’d kind of like to get an overview of the whistleblower system and how they’re protected and what the laws are that’s around what we’re going to be talking about today?

 

John R. Phillips: Well, there are numerous laws that have been passed some long ago and some more recently in fact more recently it’s getting more attention to protect whistleblowers because first of all, they’re very often, very badly treated by taking the risk of coming forward with incriminating information that affects other people and secondly the government wants to encourage more whistleblowing because the information when it reaches the surface to be investigated it’s beneficial to the government whether it’s a situation where the government has been defrauded out of money or where there’s some government officials engaged in practices that are inappropriate or improper.

 

You’ve got to create both protections for the whistleblower because they fear for their own professional and personal futures ahead for good reason. And secondly have the confidence that these laws that are passed by Congress are actually going to be affected. So we have — the big change came back in — for a different type of case being brought under what’s called the False Claims Act which was actually enacted by President Lincoln and the Civil War era to deal with passive fraud against the Union Army. It was amended substantially in 1986 to modernize it and make it applicable to today’s jurisprudence, and since then it has been a phenomenal success.

 

Now 85% of all the recoveries that the United States obtains from companies that have defrauded it, come from whistleblower-initiated complaints, only 15% come from those initiated by the Department of Justice or other government agencies.

 

So we used to have something like $25 million recovered pittance back in 1986 and today we have on average $5 or $6 billion a year that’s brought in because of the effect of the whistleblowers.

 

The success of that law has been enormous and been so received around the world because many other countries now are trying to adopt this model here too. Because of the success of that they’ve also enacted laws that deal with the SEC violations companies, SEC violations tax fraud and the like, but also because I think in part the success of that law they have passed new laws as in this case the Intelligence Community Whistleblowers Act that has been utilized by this filing that was done on August 12.

 

But it’s different, it’s a different structure. It serves a little different purpose, but the fundamental objectives are to protect the whistleblower, give them the confidence to come forward and create incentives of some form. Look, like these whistleblowers want to do the right thing and there’s troubles typically, they’re on the inside and they’re working for their employers and it presents great risks for them, but they — this is the call from Congress. We want you to do the right thing.

 

So we’re seeing a big uptick I think on the whole concept of whistleblowing through the law, through the court systems. And what we’re seeing of course this week — this last week has been extraordinary where the action brought is actually against the President of the United States the complaint.

 

So right now as we speak, for example, there’s — I’m leaving this to go to a conference that we have every year about 400 lawyers that specialize in whistleblower work under the False Claims Act, we gather annually here in Washington, so growing field for both whistleblowers and lawyers who represent whistleblowers.

 

1. Craig Williams: Well, Bradley, let’s talk about this particular complaint, the one against President Trump that has hit the news lately and first let’s have you describe the circuitous path it took to become public. I mean, first this was — obviously got generated by the whistleblower and then what happened to it?

 

Bradley P. Moss: Sure. So the process by which this complaint was submitted is something far newer than the False Claims Act and that related legislation is called the Intelligence Community Whistleblower Protection Act. It was passed in the late 90s by Congress and signed into law by President Clinton, it was later amended by President Obama.

 

What that statute sets up is a mechanism, simply a process by which an official within the intelligence community can bring a classified complaint, raise concerns in a classified context through the Inspector General of the Intelligence Community to be sent to the intelligence committees either the House or the Senate. It is designed to ensure that the sanctity of classified information is assured and secured throughout that time and that it is not disseminated outside of authorized channels.

 

So what we had in this particular instance, the individual who has not been named, and hopefully, will not be named going forward brought the complaint on August 12^th, it was submitted to the Inspector General, the Inspector General under statute had 14 days to render a determination.

 

(00:10:08)

 

The determination was that the complaint was credible and met the definition of an urgent concern which is that it was a flagrant or serious abuse of law with respect to the operation of an intelligence activity.

 

At that point this is where things got tricky. The statute says, the DNI, the Director of National Intelligence, has seven days to forward the complaint to the intelligence committees, it does not allow the DNI to do anything else. The DNI is supposed to simply be UPS, taking the package from you and taking it to your grandmother, it’s not supposed to render any additional review. What was so unusual here, and this is kind of what John was hinting at, was that this involved the president and because it had never been done before in the history of the statute, the DNI sought legal guidance on whether these provisions under the ICWPA could apply to the president. The determination by DOJ was that it did not and when Adam Schiff, the Chair of the House Intelligence Committee learned that he issued a public subpoena and everything over the last two weeks or so has been derived from that public subpoena.

 

1. Craig Williams: Is there a conflict of interest, John, and going from the DNI to essentially the DOJ, the White House itself and asking for guidance?

 

John R. Phillips: Well, that’s very good question. It certainly presents itself in the this fact situation here because the two people that were specifically named as subjects were both President Trump and also William Barr the Attorney General and so the concern is, if you’re going to send over to the White House in advance, the fact that a complaint has been filed, you’re obviously likely to get that information right to the targeted person President Trump that enables him and them to take defensive action to figure out what’s going on and the whole idea whistleblowing at least — in the context both the False Claims Act and the Intelligence Community Whistleblower Act is to allow the investigation to go unimpeded, but if you’re tipping them off there’s an investigation going before there’s an opportunity to do the questioning and gather documents that can compromise.

 

And when you have this complaint being sent both to the attorney general’s office to the United States Department of Justice and to the White House two of the principal’s themselves will have access to that that they shouldn’t have and that’s the conflict of interest. But here he’s — he’s the DNI Director, Maguire, he’s obviously very concerned about what his responsibilities are and it’s not totally clarified and something here involving the highest person in the whole food chain, the president, he wants to make sure he does it absolutely carefully.

 

And I got to say, even though it took longer, it took longer than the statutory scheme said out to get the information over to Congress which was what was really entitled to do, it got there, but it almost didn’t get there and I think because of the DNI persistence this is the reason it got — I think it was a very good chance we’ve never have seen the light of day had he not persevered and pursued that and what he did was go through this process and he had to make sure he is not doing anything wrong and the issue that he raised was executive privilege, is this the president’s privilege? I don’t want to put something out there that goes public that was his protected information and I don’t want to do that without either the idea that he — that’s been waived or not going to assert it or if they are going to assert it then I need more-and-more guidance.

 

So he took steps that resulted in that rough transcript. The way they gathered the information in the Situation Room in the White House that was put together had to be released. I mean they — I think the administration, the Trump administration, White House just concluded they were — they could not release this in light of the allegations and charges themselves.

 

So once that was released and that precipitated the IG’s opportunity to be able to send over the complaint to the intelligence committees in the house as per the legislation because if he says it’s been waived they can’t rely on executive privilege since they’ve released this transcript. So now I must I have a statutory obligation to send it over, and that’s when it all became public and the scrutiny is getting now of course is because of that without that being public we probably never would have known about this.

 

1. Craig Williams: Bradley, I mean, like the claim of an executive privilege is incredulous to me. I look at this as though an executive privilege is somewhat like the attorney work product privilege, it’s internal, it’s for me and no one else can see it, but when I get on the telephone and I call let’s see a foreign leader or in my case opposing counsel, I can’t claim that that privilege exists. How does the president get to claim that or how did he even come up to the DNI just seems like it’s a red herring.

 

(00:15:07)

 

Bradley P. Moss: Yeah, I mean, it was rather far-fetched and by and large no, it would not have survived scrutiny if this had become a court fight, which was obviously what the president and his lawyers did not want to deal with, yes, they had refused to comply with the subpoena. If they had turned this into a legal battle with Chairman Schiff and this had gone to court over the subpoena, you know, six to five and pick them, they lose that argument in terms of executive privilege, because if he is having this conversation with foreign leader that it’s never been applied in that context and it likely would fail and this was part of the reason and John again kind of hinted at that. As to why they ultimately relented here, there was immense public pressure because of the public subpoena and the stories that were starting to leak out from who knows where it certainly wasn’t coming from the whistleblower. Those coming from other individuals who were leaking out details of what this complaint could be about and they had — there was a lot of political pressure, obviously that’s renewed impeachment push.

 

And so, there was a kind of a triage moment for the White House of, okay, what can we get out, what can we release, and how can we stem the bleeding? They released this memo that is very clearly states it’s not a verbatim transcript of the call between the president and the leader of Ukraine, but which address by and large the substance and they allowed for the release of the complaint itself to the public and public testimony. That has slowed the push a little bit and allowed time for the president and his allies to regroup and find a way to try to attack. This is a political smear campaign, but at the moment they’re just putting band-aids on a wound, they’re not really fixing the underlying problem and that goes to the essential piece of if there’s more detail to this and obviously we still don’t know what’s going to come out of the inquiry into the details underlying the whistleblower complaint. If more comes out, if there’s more substance to this, this poses a very real and serious political threat to the president’s continued ability to lead.

 

1. Craig Williams: Well, gentlemen, before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsors. We’ll be right back.

 

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And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is attorney John R. Phillips, former US Ambassador and a founding partner of Phillips & Cohen, and attorney Bradley P. Moss from the Law Office of Mark S. Zaid.

 

We’ve been talking before the break about the release of this transcript or partial transcript or memorandum from the White House, John, in light of the release — the White House’s release of this partial transcript, why is President Trump out there banging the drum about identifying the whistleblower and the people that may have contributed to this because it seems to me from reading the whistleblower complaint and reading the transcript, it seems that the transcript pretty much admits everything that the complaint says?

 

John R. Phillips: Yes, I think so and that was, it seemed to have startled the president that apparently his reading of, but he thought it was a perfect conversation. I think that’s the word that he used absolutely nothing, but I’ll tell you, am I reading it and everybody I know who reading it, it is very incriminating and the other comments that have been made well, this guy didn’t even have this person whoever it was didn’t have first-hand information. It’s hearsay, if that complaint was very well-written, very professionally done, it was thorough, it’s exactly what was intended by the legislation. Gather the information, turn it over to the appropriate authorities, and do it all step by step as this whistleblower has done and you are expected to have anonymity and we’re going to ask the government has committed to do keep your name out of this as long as we can, but you can’t guarantee that of course.

 

(00:20:02)

 

I predict that so many people will know about it’s going to be almost impossible for this whistleblower to remain anonymous indeed Chairman Schiff said he will be appearing behind closed doors in front of the committee. And once you do so many people, I didn’t know they’ll try to keep it very confidential. I predict it will come out.

 

But also in his complaint, he refers to six other people in this whole situation room, intelligence community within the White House and I’ve been there many times. It’s a control group, there are other people who have access to it in the way they gather the information to put it down in a transcript. These are serious people, well, highly trained and highly respected, and obviously, the way that complaint has been drafted, he said these people, his colleagues were also very troubled by what they knew and each of them knew apparently different parts of exactly what happened.

 

So together these seven people, six plus the whistleblower have put together a pretty first-hand comprehensive, I gathered from reading the complaint statement of exactly what occurred that led to the filing of this complaint in the first instance, but to have the president say as he did again today, he wants to interview. He wants to know who is this whistleblower and who are these other people and they are akin to a spy, and you know what we do with spies, it’s unbelievable.

 

Congress passes this law, this person performs to the T exactly what is expected of him including his expectation of anonymity and the president comes out and attacks this person and says that he — the president is the whistleblower and not this guy. I mean, it’s just pretty preposterous, but that’s where we are.

 

1. Craig Williams: Bradley, this isn’t the first time the whistleblower says that this has happened. He said that what was unusual and perhaps what triggered the whistleblower complaint, was it the White House’s decision to move the verbatim transcript of the phone call to a national security level server that was typically reserved for matters of national security and as the whistleblower says in the complaint this is a political matter. This is nothing to do with national security.

 

Given that there’s potentially more of these things, let’s also talk about the identity of the whistleblower, is it likely somebody in the NSA who’s seen the White House move these things, these memos from the government to this private security intelligence server. What’s going on here?

 

Bradley P. Moss: Yeah, so I’m not going to speculate one way or the other on who this person may or may not have been. As far as I’m concerned I think the person’s anonymity needs to be protected and remain protected for as long as he or she wants to remain anonymous.

 

This person went through the law as John noted went through it to the T, submitted the complaint properly, this person is not the story. The story is the substance of the complaint, the details that come out around it and whatever the two political branches, the executive branch and Congress choose to do about it, if anything.

 

The whistleblower does not need to be a part of the story anymore than he or she already was simply by virtue of submitting the complaint. They should be allowed to go back to their job wherever it is if they are still in the government or not, and remain confidential and anonymous just like Deep Throat was allowed to do once upon a time.

 

Their ability to continue under that cloak of anonymity is what the statute contemplates and what it’s supposed to do. It’s not supposed to be a way to out people.

 

1. Craig Williams: Oh, John, let’s talk about the Deep Throat, what kind of parallels do we see here from Watergate? There seems to be some procedural similarities.

 

John R. Phillips: Well, I mean, Deep Throat was not a legal proceeding. I mean, guy Mark Felt, the guy who ultimately was revealed about 35 years later as Deep Throat, he had information as he gone to the assistant directors of the FBI. The way he pursued it is to meet in a dark garage and get Woodward and Burns. Woodward, I guess was a guy he gave — Bob Woodward gave the information to and then let the press take it from there which leads to all the investigations of the government and bringing out the facts.

 

I mean, here we do have a very specific statute designed exactly for this circumstance to help and protect people on the inside. So in that case I marked the Deep Throat if this law were in effect he could have — and probably may have done the same thing, but again, keeping his anonymity at such a high level would be probably hard to have done, had it been so widely public and accessible as to who did what if something was written with his name on it, it would be harder to protect.

 

(00:24:54)

 

But the parallels are just the fact that a whistleblower high up in the government has come forth with very damaging information about improper activity in the case of Deep Throat, President Nixon, and now in this case, President Trump. That’s the parallel.

 

1. Craig Williams: Right. Well, Bradley, as you go through the whistleblower complaint and you see the sequence of events leading up to and including kind of adding the context of Trump’s tweets saying the Ukraine better play ball, we are going to take a look at seeing how they are moving forward on cooperation and corruption. And then you see the references to the political rather than legal prosecutor in the Ukraine who seems to be fanning some planes. Does the whistleblower complaint give more of a context to what’s happening here? How does that come out through President Trump’s admissions through his tweets?

 

Bradley P. Moss: Yeah. So I think what the complaint outlines, this goes back to one of your earlier questions that I don’t think I actually got to in the end, was a potential pattern of practice of how the President uses his authority and uses these phone calls of foreign leaders to pursue personal political objectives and to utilize the authority and the position of a President to leverage that in order to get these foreign governments to provide him with what could be viewed as political assistance in a way that is on the borderline of possibly criminal or illegal and certainly what could qualify as impeachable.

 

I mean this goes back to that issue of moving these transcripts to the other server so that no one could find them. These are things — these types of phone calls are standard, they are per forma, I mean they are routine, this is stuff that presidents do, they have extensive briefings before and they kind of walk through with a script.

 

Donald Trump doesn’t do that. Donald Trump likes to shoot from the hip and go off the cuff and just kind of talk, and we are seeing with these calls how that becomes a problem for him, because he views these calls as a way to get personal, political assistance. A lot of what is outlined in that transcript, a lot of the nature of the call, I could ignore or dismiss as Donald Trump being Donald Trump, where he crosses the line, and this is where even the White House staff clearly had a problem with it, because they moved the transcripts to that other server, was he is pushing the Ukrainians to investigate a political opponent.

 

If there was anything of substance, anything of merit to the claims that Hunter Biden or Joe Biden broke any laws, the FBI is fully capable of investigating and prosecuting that. They don’t need the President pushing a foreign leader to personally investigate the President’s political opponents, that’s an abuse of authority and that’s the problem that was outlined in the complaint; whether or not Congress views that as sufficient and warranting impeachment and removal is a political decision that is beyond the interests or pay grade of the whistleblower.

 

1. Craig Williams: Well gentlemen, we have just about reached the end of our program. It’s time to wrap up with your final thoughts and contact information. I know John has a short timeframe left, so we will throw it over to him first and John, let’s talk about what high crimes and misdemeanors are here?

 

John R. Phillips: Well, look, the founders in drafting the Constitution and especially the impeachment section was trying to think of circumstances where you may have to remove a President elected by the people and the term high crimes and misdemeanors was something that would be sort of broader, but significant.

 

I mean it’s not a specific law or violation, although I think you could craft legal violations of laws that he may have committed here, which the transcript reveals. But Congress says if a President’s conduct is so in violation of policy or ethics or rules or whatever, so undermines the role of President, there has got to be an out here for Congress to act.

 

So really the determination of what’s an impeachable offense is made just for the impeachment part by each member of Congress. There is no review of that, except by the Senate that will try the case to determine whether there is actual conviction.

 

So every member of Congress to determine, do I think this rises to the level of impeachment, has to make that determination. There is no very precise formula.

 

To me, looking at the seriousness of this conduct and the consequence, look, I have been in at least three or four meetings, four meetings with President Obama and the head of state, and I know how those meetings are put together and how they are scripted, and I will meet the President in the room and it’s a face-to-face meeting. It’s all structured, it’s all scripted. It’s not an opportunity for the President to have a secret conversation with a foreign leader that this President has had with Mr. Putin in Russia; that is very out of the ordinary.

 

(00:29:51)

 

This is a communication between a head of state and another head of state, it’s public’s business, and unless there is something that’s classified or highly confidential that you can’t have it revealed because of the nature of the subject, then that’s appropriate not to have it, but everything else it said — and it should be open, and we always would put out a statement, the White House, here is what was said in the meeting.

 

So what he has been doing here as a general practice and procedure is highly unorthodox and he is doing it, it appears in reading this transcript and reading other transcripts that have come out, talked with Mexico before it that got leaked, and Putin, where he — when he met with Vladimir Putin, nobody else was able to be present and they even had controls over the translator so that this would be absolutely kept secret. We don’t know what was said there.

 

So this is a pattern and practice this President has engaged in. I think what he has done to use the power of his office and taxpayer money, close to $400 million that he held in abeyance for no reason other than, which will come out later, to give leverage over the newly elected President of Ukraine, and then he asks him to dig up dirt on his primary opponent, that is about as abusive as you can imagine.

 

So I don’t think there is a question that they have this all presented in Congress, which they will, that it’s likely there will be a vote for impeachment. There are already 225 Democrats, all they need is 217, so they would — right now based on what they know they would vote to impeach, but things could change once the case is presented. So I think there is a very high probability he will be impeached.

 

Now, what the Senate does, what Mitch McConnell does, because it gets sent to the Senate for trial, he just said yesterday he has to act on it. You can’t just ignore it. But acting on it can take a quick majority vote not to proceed, which is what people think could happen, or he may do what the Constitution calls for and says we really have to conduct a trial here and make a determination of whether he is guilty as charged by that impeachment thing.

 

So we will see. I think this is extraordinary. We are in for some very tumultuous times. How it plays out, we don’t know. And there are some others caught up in this, certainly Attorney General William Barr and Rudy Giuliani, the two of them, going to Ukraine, meeting with — arranged meetings with other prominent heads of states, or meeting in Spain, as Giuliani did with the new President’s top person, to carry out what they said in the phone — in the discussion on the phone, how can you help us do these two things; find out Hunter and Joe Biden, what they — do we have any dirt on them? I mean it’s a very, very serious offense.

 

So I think we are heading into some really unknown, uncertain and tumultuous times as this unfolds.

 

1. Craig Williams: Certainly are. Well, John, what’s your contact information, if our listeners would like to reach out to you?

 

John R. Phillips: Well, my office email is [email protected].

 

1. Craig Williams: Great. Thank you very much. We really appreciate your involvement today and we will turn the conclusion over to Bradley.

 

Bradley P. Moss: And all I will say, and John summed it up very nicely, is that in the end this will be essentially a political decision. It’s almost certain that the President will be impeached I think at this point, whether or not the Senate, which will — is obviously controlled by Mitch McConnell, who is member of the President’s party, whether or not the Senate would move to convict is likely only to occur if enough Republicans view from a long-term principle manner in context that what has been done here by the President is too much for them to stomach.

 

It would be a very politically risky move I am sure for many of them and I don’t anticipate it right now, based off of what we know, but to air this out, to have the impeachment inquiry and to have the Senate trial is what the framer has envisioned, it’s what is expected of such a set of behavior like this, and I think one way or the other it’s what is required for Congress to pursue as outlined by the Constitution.

 

And if anybody wants to follow me, the easiest way is to just follow me on Twitter, @BradMossEsq. I am on there all too often; it’s going to get me fired one day.

 

1. Craig Williams: Isn’t that the case for all of us.

 

Well, thank you very much Bradley, we really appreciate your contribution today.

 

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I am Craig Williams. Thanks for listening. You can join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

 

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