Addendum And Correction To The Complaint Form Revision Discussion [Updated]

In Item #3 of this morning’s Warm-Up, I wrote, “The intelligence community quietly eliminated a requirement that whistleblowers provide direct, first-hand knowledge of alleged wrongdoings that had existed since May, 2018. The revised version of the whistleblower complaint form was not made public until after the transcript of the President’s July 25 phone call with the Ukrainian president Volodymyr Zelensky. It had eliminated the first-hand knowledge requirement, allowing government employees to file whistleblower complaints even if they lack direct knowledge of underlying evidence and only “heard about [wrongdoing] from others.”

I now know that this description was misleading and incorrect, because my source had confused a change in the reporting form, which it documented with screen shots, with a change in the whistleblower law, which had remained the same. This was explained in a twitter thread by Julian Sanchez, a senior fellow at the Cato Institute and a  technology and privacy expert. I will note that based on the Federalist’s screen shot above, one can understand their confusion.

Twitter is terrible format to make a substantive argument or explain anything, but I guess Sanchez doesn’t have a blog or a Facebook account, or something.  He writes that he contacted the site’s editor Mollie Hemingway and she didn’t correct the post.

[Notice of Correction: I had written here, erroneously, that the Federalist doesn’t allow comments. It does: I missed the tiny link at the bottom of the page. In fact, there are a lot of comments to that post. They are not helpful…]

I considered trying to put the following in coherent chronological order, but I’m just going to post Sanchez’s tweets as they appear on his feed:

Got all that? What Sanchez is pointing out is that the original form, the one the Federalist and Sean Davis found was changed right around the time of the complaint to the Inspector General, was misleading, and might have incorrectly communicated that a report had to be based on first hand knowledge. That was never true, so the Federalist headline, “ Intel Community Secretly Gutted Requirement Of First-Hand Whistleblower Knowledge” is factually incorrect, and  its subhead, “Federal records show that the intelligence community secretly revised the formal whistleblower complaint form in August 2019 to  eliminate the requirement of direct, first-hand knowledge of wrongdoing” is half wrong. The form was clarified, but the requirement as stated in the relevant law didn’t change.

The Federalist should correct all of this, as I am doing now regarding my post based in part on its mistake.

However, part of the Federalist’s point, and mine, remains valid. Changing the form appears to be an advance effort to eliminate objections to the whistleblowers’ report against the President. Yes, it was , as Sanchez says, a valid clarification, but the timing is still suspicious.

I also find Sanchez’s statement that the transcript of the President’s phone call confirms the key points in the complaint untrue, and suggests bias or confusion. Sanchez is a confirmed NeverTrumper, and he’s not a lawyer. In that opinion, both show. The call transcript neither justifies nor substantiates the complaint. Sanchez is correct about the Federalist’s error however.

Special thanks is due to valkygrrl for the pointer.

13 thoughts on “Addendum And Correction To The Complaint Form Revision Discussion [Updated]

  1. I also find Sanchez’s statement that the transcript of the President’s phone call confirms the key points in the complaint untrue, and suggests bias or confusion.

    Thank you for pointing this out as well. The ICIG said that a “preliminary review” indicated that:

    (1) The Complaintant had authorized access to his reported sources;

    (2) The Complaintent had subject matter expertise related to the material he provided, and;

    (3) “Other information” obtained during the review supported the Complaintant’s claims that the President “sought to pressure the Ukrainian leader to take actions to help the president’s 2020 reelection bid.” The ICIG did not explain what this information was in the text of the letter. Presumably that was contained in the secret appendix.

    The interesting thing is, the actual phone call transcript provided by the President did not support (3) above, and the ICIG says that he didn’t see the call transcript as of the writing of the letter. But at the time, he was assessing credibility, not whether the information was factually accurate. He couldn’t, and didn’t corroborate anything other than the existence of the call and the fact that it was with Ukrainian leader. We don’t know the “other information” because it isn’t provided, but since the complaint and the transcript don’t match up with respect to pressuring the Ukrainian leader, we have to assume it confirmed at minimum that Biden was discussed, which would be more than sufficient for the standard of “appears credible.”

    The “appears credible” standard used by the statute is a very, very low bar. The first two items above were probably sufficient to clear it by a mile, but it’s such a nebulous standard that it is certainly subject to disagreement by a rational person, such as the DNI, who made a different determination.

    Another point made by the ICIG was that on July 19th 2019, the DNI announced the establishment of the “Intelligence Community Election Threats Executive.” This is very close to the time that the disclosure form was revised, and I suspect that is not a coincidence. The formation of that new bureaucratic layer would seem to place “whistleblower” complaints squarely in its wheelhouse, and it may be that initiative that generated the form change. Certainly the form was confusing, and possibly downright misleading given the wording of the underlying statute.

  2. Jack, you write that The Federalist doesn’t allow comments, but it does. The article about the changed whistleblower form currently has over 4,000 comments on The Federalist’s website.

        • Yeah, they really do need to clarify this. It doesn’t really need “correction” per se, because the article discusses the form. Where it gets muddy is where it says “… ICIG requirements for “urgent concern” submissions.” Technically, the form reflects the ICIG requirements for a report, but those requirements were not supported by the law and represents an additional test not reflected in either the law or the supporting regulation. Davis didn’t mention that, and he should have if he knew.

          But the article has no obvious falsehoods that I could detect — it just leads the reader to draw a conclusion about the law that is not right. There is no doubt the form was changed very near the report’s submission, and it is reasonable to conclude that when the “whistleblower” was submitting the report, the language was discovered and corrected (correctly, not corruptly as the article implies).

    • I have always wondered: Why would anybody even bother to write a comment, knowing that his would be only one of 4,000? It seems almost guaranteed not to be read by anybody.

      • As of 9/30/19 @ 17:45 the Federalist and others were standing by the initial report. It may be the headline gave the wrong message but the IC AG stated the whistleblower indicated he had 1st hand information on the transmittal form that was in fact changed in August 2019 and was not the form used in 2018 as some have reported

        I have no idea if the Cato source is accurate or if the Federalist headline was appropriate. What troubles me is that a CIA operative is gathering data and performing analysis on US citizens. Will the left, do away with the Posse Commitatus act if they take over?

        • Good luck getting soldiers from red states to police red states. You would need to raise your own hand picked army, based upon ideology. A good bit of pruning would also be needed, to get rid of the red state supporters.

          Once you have your army, good luck facing former soldiers, veterans of some of the nastiest fighting in the last 50 years, on their home territory where they are protecting their families, friends and neighbors.

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