The Whistleblower Complaint and the Transcript: A Criminal Trial Lawyer’s Perspective

https://www.zmolaw.com/news/wp-content/uploads/2019/09/Screen-Shot-2019-09-29-at-10.33.38-PM-300x235.pngThe past week was one of extraordinary revelations relating to foreign policy and corruption at the top of the government of the United States. The public got to see two documents, just months after they were created: first, the “TELCON” or transcript of a phone call between President Donald Trump and Ukrainian President Volodymyr Zelenskyy that took place on July 25; then, twenty-four hours later, a detailed letter from an unnamed whistleblower to congressional oversight committees accusing the president of self-dealing that sounds like treason — soliciting foreign interference in American elections as a condition of military aid.

The documents read like filings from a criminal trial. Here is one defense lawyer’s perspective.

The letter, which is referred to as the whistleblower’s complaint, resembles an affidavit in support of a search warrant or a criminal complaint in federal court. It is, in effect, sworn to and signed by a witness — a law enforcement officer in court, probably a CIA or foreign service officer here — but written by a lawyer. As the New York Times pointed out, the whistleblower complaint is unusually well written: right to the point, active verbs, clear sourcing. It incorporates law as necessary, but does not let legalese or George Orwell’s tricks-of-the-trade get in the way of clear communications. At the very outset of a federal criminal case, an experienced lawyer has a sense of how strong the government’s case is based on whether the criminal complaint reads like this (criminal complaints are used in federal court to establish probable cause for an arrest; to proceed to trial, the government must then obtain an indictment, which is voted on by a grand jury but does not spell out the basis for the probable cause). Many complaints are vague, verbose and fall back on the passive voice. Those linguistic weaknesses frequently cover holes in the evidence that become more apparent as the case develops.

Then there is the transcript. The document refers to itself as a “Memorandum of a Telephone Conversation (TELCON)” and cautions that it is not a verbatim transcript of the conversation. The TELCON points out that its accuracy can be affected by poor sound quality and variations in accents. But it picks up the nuances of the conversation — “I would like you to do us a favor.” So the TELCON carries less weight than a recording or a verbatim transcript, which would usually be based on a recording. Would the TELCON be admissible in court? Would it be enough to convict the Donald of high crimes and misdemeanors?

The answer to both questions is no, at least not without a bit more information. Unlike a recording, the TELCON is hearsay-within-hearsay (i.e. it is an out-of-court statement of a human being, the note-taker, recounting other out-of-court statements of the participants in the phone call). It is admissible against Trump, but only if an exception to the hearsay exclusionary rule applies. For example, if a witness (again, the note-taker) could testify that she remembered hearing what was said at the time but no longer remembers at the time of trial, the TELCON could be read into the court record as a “recorded recollection” under Rule 803(5). If the note-taker established that the TELCON describes the conversation and was made while or immediately after the note-taker herself heard it, Rule 803(1) would permit the jury to hear the TELCON as a “present sense impression.”

The next question is whether the TELCON proves up any the elements of a crime or, better yet, “Treason, Bribery, or other high Crimes and Misdemeanors,” which is what Article II Section 4 of the Constitution requires for removal from office? Again, I don’t think the TELCON does it by itself. It certainly appears that Trump is asking Zelenskyy for “a favor” for his own personal benefit. But, as Trump keeps saying, he offers nothing in return — at least explicitly. Trump himself does not seem to be speaking furtively or conspiratorially on the call. He refers to “the server” — he seems to believe, aspirationally, in a conspiracy theory that Ukraine has the Democratic National Committee’s email server. Zelenskiyy does not necessarily seem to understand what Trump is talking about — he falls back on a few Orwell-isms (operators, pretentious diction, meaningless words) as he slips into sycophancy. By itself, the call arguably does not indicate a guilty state of mind because Trump comes off as too stupid and cynical to realize how improper his request to Zelenskyy actually is. He knows other people are listening. It is those people who apparently realized what Trump had done and moved to sequester the TELCON to a secure, unconnected computer system.

In the context laid out by our uniquely articulate whistleblower, however, there seems little doubt that Trump engaged in a “high Crime or Misdemeanor,” if not “Treason” itself (capitalization in the original). A few days before the call, he unilaterally cut off hundreds of millions of dollars in aid to Ukraine. In the call he talks about bestowing American largesse on the Ukraine in the same breath as he talks about how Zelenskyy should get together with his two hatchetmen, Rudy “off-the-rails” Giuliani and William “no-collusion-no-obstruction” Barr. The complaint pulls together statements from numerous witnesses who, presumably, would testify that Trump and his acolytes worked to hide the TELCON on an unconnected computer system. Realizing the content of the call was damning, they restricted access to it for no legitimate reason. One of the whistleblower’s sources, who could likely be qualified as an expert witness (on the topic of “foreign policy document handling procedures” or some such thing), opines that “the call did not contain anything remotely sensitive from a national security perspective.” That makes putting it on the secure system suspect.

So is there a case against Trump based on what we know so far? That’s a question, of course, for the jury, which in this case will be Mitch McConnell’s U.S. Senate, a shadow of the world’s greatest deliberative body that existed, for example, at the time of Richard Nixon’s impeachment investigation. I’d be happy to step up and defend Trump, so long as he could afford my retainer (perhaps unlike Giuliani’s retainer, mine would have to be paid in full, in clear funds, before any work started, given Trump’s history with attorneys). We’d have to do a much more careful dissection of the call, obsess over whether he should testify (I’d advise against it, of course, but would he listen?), and find some exculpatory witnesses to build a credible defense narrative. The best strategy would be to prove up the fact that he is stupid as a brick, but would the client permit us to argue that? We would not bother trying to discredit the whistleblower — that’s clearly a losing battle (or, as I would put it to the Donald, a battle for losers). We’d claim privilege wherever possible, and invoke the Fourth Amendment to its fullest extent. It would be an uphill battle, but, given the jury, I think we could get the job done.

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