Trump’s Ukraine call, a whistleblower and the Bidens: What we know, what we don’t

President Donald Trump talks with reporters on the South Lawn of the White House on Sept. 22, 2019, as questions swirled about his actions with Ukraine, which reportedly inspired a whistleblower complaint. (AP)
President Donald Trump talks with reporters on the South Lawn of the White House on Sept. 22, 2019, as questions swirled about his actions with Ukraine, which reportedly inspired a whistleblower complaint. (AP)

President Donald Trump for months has tried to draw attention to the connection between former Vice President Joe Biden and his son Hunter over the younger Biden's ties to a Ukrainian energy company when he was vice president. But a complaint from an intelligence community whistleblower has made Trump a new focal point of the story, and news reports have zeroed in on interactions between Trump and Ukrainian president Volodymyr Zelensky.

Trump and his allies have hammered away at Biden — a potential opponent in the 2020 presidential election — charging that he and his son Hunter had acted improperly in dealings with Ukraine when the elder Biden was vice president and the younger Biden was a paid director of a Ukrainian company.

In May, PolitiFact and other fact-checkers found little substance to these allegations. Hunter Biden did do work in Ukraine, but we found nothing to suggest Vice President Biden acted to help him.

Now, Democrats see the reported details about Trump’s interactions with Zelensky as efforts to bully a foreign country into doing something helpful for his re-election campaign, possibly using U.S. military aid to Ukraine as leverage. And that has them talking impeachment.

"We may very well have crossed the Rubicon here," House Intelligence Chairman Adam Schiff, D-Calif., said on CNN’s State of the Union.

Much is unknown so far about what Trump may have said to Zelensky, since the whistleblower complaint has not yet been made public.

Let’s take a look at two broad subjects: first, the actions taken by Trump and their possible legal risks, and second, the underlying allegations against the Bidens. (Skip to Hunter and Joe Biden, and Ukraine, explained)

Trump's actions on Ukraine 

What did Trump allegedly do regarding Biden and Ukraine? 

In a July 25 phone call, Trump reportedly asked President Volodymyr Zelensky about eight times to work with Trump’s lawyer Rudy Giuliani on a probe of the Bidens, according to the Wall Street Journal, citing unnamed sources familiar with the matter. The Washington Post and New York Times also published similar reports.

It’s unclear if the discussion included a quid pro quo. The Washington Post on Sept. 18 reported that Trump’s interaction with a foreign leader, later identified in subsequent reports as Zelensky, included an unspecified "promise."   

Some media outlets have suggested that Trump’s apparent request to Zelensky is linked to the United States reportedly slow-walking the delivery of $250 million in military aid to Ukraine. 

Trump has denied telling the Ukrainian president that he would only get U.S. aid if he investigated Hunter Biden.

"You will see, I did not ask for ... I did not make a statement that 'you have to do this or I will not give you aid,' " Trump said during a Sept. 23 exchange with reporters at the United Nations General Assembly. "I wouldn't do that." (Editor’s note: On Sept. 24, Trump said that he did withhold military aid from Ukraine, but said it was because other countries weren’t contributing their fair share.)

The Wall Street Journal reported that Michael Atkinson, the inspector general of the intelligence community, told lawmakers during a closed session the conduct in question "involves more than one episode and is based on a series of events," according to several people who attended or were briefed on Atkinson’s meeting with Congress. It’s unclear what those additional episodes might entail.

What do we know about the whistleblower?

The whistleblower has not been identified. What we do know is that an unnamed intelligence official filed the whistleblower complaint Aug. 12 to Atkinson, the inspector general of the intelligence community. Atkinson found the complaint credible and a matter of "urgent concern," according to a letter from Schiff, the Democratic committee chairman.

Trump said he did not know the whistleblower’s identity. During an exchange with reporters Sept. 20 at the White House, he said, "I just hear it’s a partisan person."

"It’s a ridiculous story. It’s a partisan whistleblower," Trump said. "It’s just another political hack job."

In what way would Trump’s actions be problematic under the law?

The framers of the Constitution gave the president a wide berth when it comes to conducting foreign affairs on the country’s behalf. But the president’s latitude is not absolute. 

Experts told PolitiFact that Trump’s interactions with the Ukrainian president could be problematic if they amounted to self-dealing. 

"The framers even recognized that there would be a point at which a president sought to use that authority to personally enrich himself, either financially or politically," said Kel McClanahan, a national security lawyer. "The remedy for such personal enrichment was impeachment." 

"If the allegations are true that Trump demanded an investigation into the Biden family in exchange for military aid that was already approved for Ukraine, that could constitute bribery, which is specifically listed in the constitution as a basis for impeachment," said Barbara McQuade, a University of Michigan law professor who was U.S attorney for the Eastern District of Michigan appointed by President Barack Obama.

The exchange between Trump and Zelensky has renewed the discussion of  impeachment that had faded after Special Counsel Robert Mueller found the Trump administration had not colluded in Russia’s 2016 election interference, and the Justice Department declined to prosecute the president for possibly obstructing justice. 

Is Congress entitled to view the contents of the complaint?

This question doesn’t have a clear-cut answer — as is often the case when dealing with a national security question where the separation of powers between Congress and the Executive Branch is concerned.

To recap: A whistleblower complaint was lodged to the inspector general of the intelligence community. Democratic lawmakers on the intelligence committees then asked to see the complaint. When the acting director of national intelligence Joseph Maguire refused, it touched off a tense standoff between lawmakers and the Trump administration.  

As House Intelligence Committee chairman, Schiff argued that the complaint must be turned over under the whistleblower statute

"The whistleblower protection statute says that the director of national intelligence ‘shall’ produce the complaint to Congress if the inspector general finds the complaint credible and log urgent concern," McQuade said. "That has happened."

Lawyers at the DNI countered that the complained-about conduct falls outside the scope of whistleblower statute, so it doesn’t need to be given to Congress. The DNI also hinted at the possibility that executive privilege might apply.  

Guidance from past Supreme Court rulings is of limited use to navigate the current impasse, experts said. 

In the landmark 1974 case involving President Richard Nixon’s attempt to assert executive privilege over the Watergate tapes, the justices ruled that the scope of presidential power is not so broad as to allow a president to withhold information that is critical to an ongoing criminal investigation. But that case didn’t deal directly with what happens when it’s Congress who’s seeking the information.

"In this case, with the investigators being outside of the executive branch, and the investigation not being a criminal one," McClanahan said, "the lawyers on both sides can both pull support from that case with no clearly ‘right’ answer." 

Then-Vice President Joe Biden in Beijing with his granddaughter Finnegan Biden and son Hunter Biden in 2013. (AP)

What was Hunter Biden’s role at a Ukrainian company? 

Hunter Biden held a directorship with a natural gas company called Burisma Holdings, beginning in the spring of 2014.

Reuters reported at the time that a statement on the company’s website said the younger Biden would help the company with "transparency, corporate governance and responsibility, international expansion," and other issues. The company also retained the law firm where Biden had been working, Boies Schiller Flexner.

The position with Burisma came at a time when the younger Biden had joined with Christopher Heinz (the stepson of then-Sen. John Kerry, D-Mass.) and Devon Archer (a Kerry family friend) in a string of investment and consulting firms. Firms run by Biden and Archer "pursued business with international entities that had a stake in American foreign policy decisions, sometimes in countries where connections implied political influence and protection," the New York Times reported.

Biden’s Burisma directorship attracted attention because Burisma was owned by Mykola Zlochevsky, a minister under Russia-friendly President Viktor F. Yanukovych, who subsequently went into exile after a popular revolution. After Yanukovych was ousted, Zlochevsky faced a variety of corruption-related investigations involving his business.

In 2015, Ukraine’s newly appointed prosecutor general Viktor Shokin inherited some of the investigations into Zlochevsky and his company. (Zlochevsky and the company have denied the allegations.) Shokin was ousted as prosecutor in 2016. 

In May 2019, Shokin’s successor, Yuriy Lutsenko, told Bloomberg that "Hunter Biden did not violate any Ukrainian laws — at least as of now, we do not see any wrongdoing."

Was the Ukrainian oil company Hunter Biden worked for under investigation?

At times, Burisma has attracted attention from investigators. Despite the Trump camp’s suggestions, however, it’s not clear that Burisma was actively under investigation during the period when Biden was involved with the company. Key figures have said opposing things on that point.

In an interview with the Ukrainian website Strana.ua, Shokin said the cases were indeed active. 

But Vitaliy Kasko, who had been Shokin’s deputy overseeing international cooperation, produced documents to Bloomberg that under Shokin, the investigation into Burisma had been dormant. Kasko resigned in February 2016 citing corruption in the office.

"There was no pressure from anyone from the U.S. to close cases against Zlochevsky," Kasko told Bloomberg. "It was shelved by Ukrainian prosecutors in 2014 and through 2015."

Did Joe Biden know about his son’s Ukrainian ties?

Joe Biden knew his son was working for the company, but no evidence has emerged that they discussed the substance of his work.

In a White House press briefing on May 13, 2014, spokesman Jay Carney was asked about Hunter Biden’s position with Burisma and whether it presented the appearance of a conflict of interest.

Carney said, "I would refer you to the Vice President’s office. I saw those reports. Hunter Biden and other members of the Biden family are obviously private citizens and where they work does not reflect an endorsement by the administration or by the Vice President or President. But I would refer you to the Vice President’s office."

A year and a half later, the New York Times published an article that suggested that "the credibility of the vice president’s anti-corruption message may have been undermined" by Hunter Biden’s dealings with the company. In that 2015 article, Kate Bedingfield, a spokeswoman for Biden, played down any impact on the elder Biden’s policies.

Four years later, speaking to reporters on Sept. 21, Biden said, "I have never spoken to my son about his overseas business dealings."

That tracked with what Hunter Biden told the New York Times in a statement earlier this year — that "at no time have I discussed with my father the company’s business, or my board service, including my initial decision to join the board."

However, in a New Yorker magazine profile published in July 2019, Hunter Biden acknowledged that in December 2015, the elder Biden discussed Burisma with him one time: "Dad said, ‘I hope you know what you are doing,’ and I said, ‘I do.’"

Trump characterized Biden’s comment about never speaking to his son about the company as a "lie." 

The Biden camp says the comment cited in the New Yorker article was not substantive in nature.

What did Joe Biden urge the Ukrainian government to do?

Biden proudly recounted a threat he made to withhold aid unless Shokin was sacked. Biden said the incumbent prosecutor was failing to aggressively pursue allegations of corruption in Ukraine.

During an event sponsored by the Council on Foreign Relations on Jan. 23, 2018, Biden made the following remarks, which at points were accompanied by laughter from the audience:

"I remember going over (to Ukraine), convincing our team … that we should be providing for loan guarantees. … And I was supposed to announce that there was another billion-dollar loan guarantee. And I had gotten a commitment from (then Ukrainian President Petro) Poroshenko and from (then-Prime Minister Arseniy) Yatsenyuk that they would take action against the state prosecutor (Shokin). And they didn’t. ...

"They were walking out to a press conference. I said, nah, ... we’re not going to give you the billion dollars. They said, ‘You have no authority. You’re not the president.’ … I said, call him. I said, I’m telling you, you’re not getting the billion dollars. I said, you’re not getting the billion. ... I looked at them and said, ‘I’m leaving in six hours. If the prosecutor is not fired, you’re not getting the money.’ Well, son of a b----. He got fired. And they put in place someone who was solid at the time."

Shokin’s ouster came in March 2016, when he was stripped of his position by a wide margin in the legislature.

Did Joe Biden act improperly to shield Burisma for his son?

Biden was hardly alone in calling for Shokin’s ouster. Western leaders and institutions were largely united in seeking Shokin’s removal, arguing that he was not pursuing corruption cases aggressively.

For instance, in early 2016, International Monetary Fund chief Christine Lagarde said that "it’s hard to see how the I.M.F.-supported program can continue" unless corruption prosecutions accelerate.

Steven Pifer is a career foreign service officer who was ambassador to Ukraine under President Bill Clinton and deputy assistant secretary of state for European and Eurasian Affairs under President George W. Bush. Pifer told PolitiFact that "virtually everyone" he knew in the U.S. government and virtually all non-governmental experts on Ukraine "felt that Shokin was not doing his job and should be fired. As far as I can recall, they all concurred with the vice president telling Poroshenko that the U.S. government would not extend the $1 billion loan guarantee to Ukraine until Shokin was removed from office."

Anders Åslund, a resident senior fellow at the Atlantic Council, a think tank in Washington, agreed that criticism of Shokin was widespread

Shokin "failed to prosecute anybody of significance, protecting both the Yanukovych circle and the Poroshenko group," Åslund told PolitiFact in May.

Daria Kaleniuk, the executive director of the Anti-Corruption Action Center, a leading anti-corruption voice in Ukraine, tweeted earlier this year that Shokin’s firing was not about protecting the company Hunter Biden was working for. 

Did Hunter Biden put his father in a difficult ethical position?

There is wide agreement among Ukraine policy experts that Hunter Biden’s decision to become a director for Burisma presented a serious conflict of interest.

"It’s not a crime, but it is a lapse. It’s troubling," said Lincoln A. Mitchell, an adjunct research scholar at Columbia University’s Arnold A. Saltzman Institute of War and Peace Studies who has written about governance in the former Soviet Union.

Pifer, who expressed reservations about the arrangement to the New York Times in 2015, said subsequent developments have only confirmed those concerns.

"It was a mistake for Hunter Biden to join the Burisma board, particularly given that the vice president was the senior U.S. official engaging Ukraine," Pifer said. "Hunter Biden should have been more mindful of his father's position."

And Yoshiko Herrera, a University of Wisconsin professor who previously headed the university’s Center for Russia, East Europe and Central Asia, said Hunter Biden’s hiring echoes the strategy common within Russia and other parts of the former Soviet Union, in which powerful interests try to secure influence on foreign policy by leveraging family members and associates of key leaders.

"Calling Hunter Biden a private citizen ignores the obvious links to the vice president," Herrera said. "Conflict-of-interest rules should have applied. If Biden is working for the Obama administration on Ukraine, his son should not have been on the board of a company there that could be affected by U.S. policy spearheaded by his father."

RELATED STORY: Here's the readout of Donald Trump's call with Ukrainian President Volodymyr Zelensky

RELATED STORY: What the whistleblower law says about sharing complaints with Congress

RELATED STORY: Donald Trump said European nations have not put money into Ukraine. They have put in a lot