90 Miles From Tyranny : Deleted Firsthand Knowledge Requirement For Whistleblowers Implicates Another Federal Agency

Tuesday, October 1, 2019

Deleted Firsthand Knowledge Requirement For Whistleblowers Implicates Another Federal Agency

Was the ‘nonpartisan’ Congressional Research Service weaponized to force the House into a premature impeachment inquiry?

Sean Davis wrote Friday about a secret update to the intelligence community inspector general’s “Disclosure of Urgent Concern” complaint intake form. It revamped the procedure to allow hearsay complaints, while prior versions of the form had included an admonishment that the IC IG could not find a complaint credible without “reliable, first-hand information.” While it appears the IC IG has the statutory right to promulgate new procedures, the rationale for the change and the curious nature of the timing has still not been shared.

Compelling new evidence now shows that the purportedly nonpartisan Congressional Research Service (CRS) may have been weaponized to mislead members of Congress and the American people — all in the name of advancing the impeachment process against President Trump. It appears that misleading guidance about precisely how expansive the Intelligence Community Whistleblower Protection Act (ICWPA) is was incorporated into the report just as the current whistleblower controversy began to pick up steam.

These Kind of Report Revisions Are Highly Unusual

Without the CRS report obscuring certain facts about the underlying statutes, it would have been clear early on that the allegations made in the whistleblower report would not have been considered an “urgent concern” under the statute. Perhaps more surprising, without the misinformation it would have been clear that the president is not subject to the specific oversight requirements of the ICWPA at all. The CRS report facilitated a false impression that ultimately provided a false impetus for the current impeachment inquiry.

On September 23, a short time before the whistleblower complaint was legally transmitted from the executive branch to the legislative branch (and the public at large), CRS made an extensive update to their publication on “Intelligence Community Whistleblower Protections.” The previous version of this publication was released on December 13, 2018.

CRS reports typically serve as the definitive guides for members and their congressional staff when researching complex issues or for assistance construing existing statutes and administrative procedures. It is atypical to make extensive updates to a CRS publication when there has been no applicable legislative action in the intervening time. And it is extremely peculiar to make extensive updates to a CRS document clarifying the precise controversial topics presented by the handling of a whistleblower complaint that was still classified and not legally available to congressional researchers at the time the report was updated.

Yes, the Statute Is Quite Specific on ‘Urgent Concerns’

The updated CRS analysis inexplicably claimed that the statute was “not specific on who has the authority for determining whether a complaint, aside from its credibility, constitutes a matter of ‘urgent concern.’” This was one of only three assertions in the entire discussion of the ICWPA that wasn’t meticulously footnoted with the underlying...

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