The Ukraine Whistle-Blower Did Everything Right
Credit to Author: Brian Barrett| Date: Thu, 03 Oct 2019 18:28:06 +0000
The Trump administration's attacks on the whistle-blower aren't just baseless—they could have a corrosive long-term effect.
On August 12, an unidentified whistle-blower filed a complaint, addressed to the chairs of the House and Senate Intelligence Committees, concerning the behavior of President Donald Trump. Ever since that report became public a week ago, Trump and his defenders have done their best to discredit both its contents and the author. But underneath the increasingly large pile of misinformation, misinterpretation, and outright fabrication sits one simple truth: The whistle-blower did nothing wrong.
That may sound hard to believe at this point, especially if you understandably don't have the time or energy to take more than a glancing look at the headlines. But a closer examination of the accusations thrown the whistle-blower's way reveals no impropriety. In fact, it reinforces a portrait of a government official who took pains to go by the book. And the more the administration portrays that sequence of events as a deep-seated conspiracy, the more likely it becomes that the next whistle-blower goes rogue.
"I've been working with whistleblowers for 40 years," says Tom Devine, legal director at the Government Accountability Project, a whistle-blower protection and advocacy organization. "I've never seen a disclosure which was handled more flawlessly, and more scrupulously followed the rules, than this one."
The latest imbroglio centers around a New York Times report Wednesday that House Intel Committee head Adam Schiff (D-California) learned the "outlines" of the whistle-blower's concerns in early August, prior to the complaint reaching the inspector general for the intelligence committee.
Trump seized on the news, apparently handed to him on his way into a Wednesday press conference with the president of Finland. "It shows that Schiff is a fraud," Trump said. "I think it's a scandal that he knew before. I'd go a step further, I think he probably helped write it, OK? That's what the word is."
There’s no evidence that Schiff or anyone on his team helped shape the complaint, or even knew its specific contents. The only "word" to that effect appears to have come from Trump himself. "None of the legal team saw the complaint until it was publicly released by Congress," whistle-blower lawyer Mark Zaid told ABC News. "To be unequivocally clear, no member or congressional staff had any input into or reviewed the complaint before it was submitted to the intelligence community inspector general."
"This obsessive procedural nitpicking seems like a desperate attempt to shift attention away from the actual substance of the complaint."
Julian Sanchez, Cato Institute
In fact, House Intelligence staffers did exactly what they were supposed to do in these situations: tell the whistle-blower to lawyer up, and submit a complaint to an inspector general. That's their long-established role in the whistle-blower ecosystem. "Like other whistle-blowers have done before and since under Republican- and Democratic-controlled committees, the whistle-blower contacted the committee for guidance on how to report possible wrongdoing within the jurisdiction of the intelligence community," Intel Committee spokesperson Patrick Boland said in a statement. "Consistent with the committee's longstanding procedures, committee staff appropriately advised the whistle-blower to contact an inspector general and to seek legal counsel."
What also gets lost is that these interactions happen all the time. "The intelligence committees are approached by prospective whistle-blowers several times a month, probably. That is not unusual," says Julian Sanchez, a senior fellow at the Cato Institute who focuses on national security issues. "Folks who are talking about coordination, as if this is some kind of inherently dodgy activity, are just revealing that they're not very familiar with intelligence or how this works."
If anything, Schiff and the whistle-blower went out of their way to follow appropriate channels. There's a constitutional argument, Sanchez says, that Congress could have accepted the report itself, rather than redirect it through the prescribed whistle-blower channels. Instead, Schiff's team appears to have followed the statute to the letter.
Other attacks on the whistle-blower's credibility and process are similarly misinformed. A recent news report erroneously claimed that the intelligence community until recently required that whistle-blowers have first-hand knowledge of events. This has already been debunked repeatedly, though that didn't stop Trump from amplifying the bogus information. The upshot: The form in question was updated in August 2019, but has allowed for second-hand knowledge of events since long before that.
As it should! Cries of "hearsay" have dogged the whistle-blower complaint since it first came out. Trump's defenders have sought to illegitimatize its contents because the author was not, for instance, on the controversial phone call between Trump and Ukrainian president Volodymyr Zelensky. It's yet another canard.
"That assertion is a shameless legal bluff," says Devine. "We'd eliminate 95 percent of law enforcement activity if agencies couldn't investigate on the basis of hearsay evidence. The point of an investigation is to see how decisively the initial leads can be confirmed and corroborated."
Fortunately for all involved, the White House itself has provided that corroboration, in the form of a call transcript that lines up neatly with the whistle-blower's assertions. The hearsay argument is moot, because the underlying facts have already been proven correct. As for the central issue of whether Trump asked Ukraine for help investigating his political opponent, Joe Biden, and Biden's son? Here’s Trump Thursday morning:
"China should start an investigation into the Bidens, because what happened in China is just about as bad as what happened with Ukraine," Trump told assembled reporters at the White House. "So I would say that President Zelensky, if it were me, I would say that they should start an investigation into the Bidens."
Who needs to blow whistles when Trump can't stop shouting into his own bullhorn? The president has done what the complaint says, this time in the open.
Which is why Trump and his defenders have spent so much time trying to discredit the steps the whistle-blower took. There's nothing else to go on. "This obsessive procedural nitpicking seems like a desperate attempt to shift attention away from the actual substance of the complaint, now largely validated by the White House itself, because the substance is indefensible," says Sanchez.
The more time spent on whether the whistle-blower followed the statute appropriately—which, again, he or she did—the less time spent on the fact that Trump has repeatedly asked foreign countries to interfere in the US electoral process. The facts are the facts, however much the White House would like you to believe otherwise.
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What's more troubling about the assault on the whistle-blower's credibility, and the desire to know the complaint author's identity, is the cascading effects beyond obfuscation. The whistle-blower procedure is designed not just to provide protections for government officials but to keep classified information out of the public eye. The next person with secrets to share could easily save themselves the hassle of official channels by simply leaking to the press. Or they may decide not to call attention to abuses in the first place.
"The No. 1 factor that causes a chilling effect isn't fear of retaliation, it's cynicism that nothing will get done," says Devine. "When someone follows all of the rules to the letter, leaving members of Congress and the president to trash them, that's hardly going to encourage others to take the risk."
Which increasingly seems to be the point: Not just endangering this whistle-blower but discouraging the next one. Even if they do everything right.