There Was Also a Cover-Up

We know about the bribery and the quid pro quo. What we don't know about yet is who initiated the cover-up.
November 22, 2019
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TOPSHOT - US President Donald Trump covers his face from TV lights as speaks to the media prior to departing on Marine One from the South Lawn of the White House in Washington, DC, November 02, 2019. (Photo by Olivier Douliery / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images)

Lost in all of the current impeachment talk is the very start of this incident:

How the whistleblower complaint was initially handled.

As Howard Baker once put it during the Watergate investigation, the question is “What did the President know and when did he know it?” In Trump’s case, we can add, “And what did he do about it?” Because the administration’s initial handling of the whistleblower report now looks less like an attempt to preserve executive authority and much more like an attempt at a cover-up.

When the whistleblower filed the complaint, the Office of the Inspector General quickly concluded that it was both credible and “a matter of urgent concern.” Consequently, the OIG had a legal duty to report it to Congress. But when the OIG filed what should have been a pro-forma notification of the complaint with the Director of National Intelligence, something happened. Instead of facilitating the passing of the complaint to the congressional intelligence committees as the law requires, the administration began a frantic effort to bottle it up, permanently.

That effort culminated in an opinion from the Office of Legal Counsel concluding that the president’s efforts to get Ukraine to do him a “favor” and investigate Joe Biden was not “a matter of urgent concern” under the whistleblower act. The OLC’s analysis is a stretch, at best. Seventy Inspectors General, including the Inspector General of the Justice Department itself, signed a joint letter insisting that the OLC withdraw or modify that opinion.

What’s particularly damning about this chain of events is that the OLC opinion only concluded that the statute did not “require” DNI Maguire to send the complaint to Congress. It did not conclude that the complaint could not or should not be sent to Congress.

Nonetheless, Maguire refused to help the whistleblower contact Congress directly even though the law gives a whistleblower the right to do so and directs the Director of National Intelligence to facilitate the whistleblower’s communications with Congress.

So either Maguire was acting entirely on his own, which seems unlikely. Or someone in the chain of command ordered Maguire to bury the complaint.

Who might that have been?

We don’t yet know precisely when President Trump found out about the existence of the complaint. He almost certainly knew about the complaint by the time he dictated the famous “no quid pro quo” phone text to Ambassador Sondland on September 9, because that’s the day that Inspector General Michael Atkinson sent his letter informing Congress that a complaint existed and that it was being buried by the administration.

But it’s very possible that Trump learned about the existence of the complaint much earlier. Senator Ron Johnson, one of Trump’s biggest supporters, has provided written evidence about a curious conversation he had with President Trump on August 31, during which Trump denied that congressionally-authorized military aid was being held up to pressure Ukraine and also denied knowing who Ambassador Gordon Sondland was. Since that’s patently absurd—we know conclusively that Trump knew exactly who Sondland was—it is difficult to interpret this as anything other than Trump’s efforts to cover his tracks.

One possibility is that Trump learned about the whistleblower complaint directly from the Director of National Security, Joseph Maquire. When Maguire testified before the House Intelligence Committee on September 26, he was asked by Rep. Jim Himes, “Did you or your office ever speak to the president of the United States about this complaint?”

Watch Maguire’s sputtering, play-for-time non-answer. No really, it’s right here. Go watch. Now ask yourself what the odds are that the real, truthful answer to Himes’ question is “no.”

Regardless of whether or not it was Maguire, at some point Trump did find out about the complaint. What did he do then? We won’t know until the House completes its investigation, but I would bet the farm that his response was not, “Why are you telling me this? This complaint is about me. I have a conflict of interest! I can’t discuss this with you.”

As the target of the whistleblower complaint, it is axiomatic that President Trump should not have been allowed to interfere with the processing of the complaint in any way. Arguably, he should not even have been told of its existence. Preventing powerful wrongdoers from suppressing complaints of wrongdoing is the entire reason that whistleblower acts exist.

And yet, various members of the Trump administration—possibly including Donald Trump himself—found out about this complaint early in the process and went all out-to ensure that it never saw the light of day.

Trying to interfere with the justice system in a foreign country is bad enough. Interfering with ours is the very definition of impeachable.

Chris Truax

Chris Truax is an appellate lawyer in San Diego and the CEO of CertifiedVoter.com, the first system designed to deter foreign interference in American social media.