The latest 'smoking gun' Democrats have been clinging to in search of that ever-elusive Trump impeachment may have just imploded - after the Washington Post quietly reported on Friday evening that a July 25 phone call between President Trump and Ukrainian President Volodymyr Zelensky did not contain an explicit quid pro quo if Ukraine launched an investigation into former Vice President Joe Biden's son as initially reported. ￼
While President Trump did reportedly "pressure the recently elected leader to more aggressively pursue" the investigation, "Trump did not raise the issue of American military and intelligence aid that had been pledged to Ukraine, indicating there was not an explicit quid pro quo in that call."
So - the current US president asked Ukraine to conduct a legal investigation into the former US Vice President, who openly bragged about withholding $1 billion in US loan guarantees unless they fired the guy investigating his son and his son's company - and there was no quid pro quo offered in exchange for that investigation - at least not on that phone call.
Recall that in the past I've placed great emphasis on the various attempts to discover Trump in some situation that could be construed as a quid pro quo exchange--especially the Trump Tower meeting between top Trump campaign aides and the Russian lawyer, Veselnitskaya. The obvious reason for all these efforts, including the present one, is to try to claim that Trump has violated some federal criminal statute, such as the Bribery Act. Before the election that would have led to Trump being indicted as a candidate, and at this point it would have been grounds for impeachment. In each instance Trump has proved far too smart to get involved in such obvious illegality, and the present case is apparently no exception.
Gregg Jarrett points out the very obvious problems with the claim that the person spying on Trump is, in fact, a "whistleblower" for purposes of the Intelligence Community Whistleblower Protection Act (ICWPA). For starters, the ICWPA is designed to protect Intel Community employees who have "urgent concerns" regarding matters internal to the Intel Community and its component agencies. The ICWPA helpfully provides a definition of just what would be an "urgent concern":
A serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information, but does not include differences of opinions concerning public policy matters.
In other words, the ICWPA applies to matters internal to the Intel Community and its agencies. But the POTUS isn't part of the Intel Community. Of course, that would not have been a concern for Schiff or the other Dems, as long as they could get evidence of that crucial quid pro quo.
Jarret sets out 5 points in this regard, of which the last 3 are very much to our point, some of which we've already mentioned:
3. Article II of the Constitution gives the president sweeping power to conduct foreign affairs, negotiate with leaders of other nations, make demands or offer promises. The Constitution does not grant the power of review, approval or disapproval to spies or other unelected officials in the executive branch.
4. The ICWPA law defines the parameters of an “urgent concern” complaint as an abuse or violation of law “relating to the funding, administration, or operations of an intelligence activity involving classified information, but does not include differences of opinions concerning public policy matters.” The president’s conversation with a foreign leader does not seem to fall under this whistleblower definition.
5. It appears the acting Director of National Intelligence (DNI) agrees with this assessment. His agency’s general counsel wrote a letter stating the complaint did not meet the ICWPA definition because it involved conduct “from someone outside the intel community and did not relate to intelligence activity”, according to a report by Fox News. This is why the DNI refused to forward the complaint to congress.
Now, Jarrett captions his article, The Whistleblower May Not Be A Whistleblower At All, and that could prove significant. While Jarrett doesn't raise the question himself, there is a very obvious question to be asked. If the "whistleblower" isn't an actual whistleblower for purposes of the ICWPA, then what is he? What is his legal status?
Matt Whitaker--who seems to be everywhere these days--provided a possible answer to that question to Fox News:
Well, I think the only thing we know is this individual, especially if they're the source for the Washington Post, may have violated the law in providing intelligence and classified information to the press via leak, outside the bounds of the way the system is set up to be.
It would be very satisfying to see this individual prosecuted. However, I doubt that will happen, simply because I doubt the phony "whistleblower" is the actual leaker--that would be Adam Schiff or an aide, in my best guess.