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Fact Vs. Fiction In The Whistleblower Scandal

The key point for the coming weeks is not whether the whistleblower had an ax to grind or was part of an organized effort. The focus should be on whether the whistleblower’s allegations were factual or not.

The Republican response to the Ukraine scandal has been to attack the credibility of the whistleblower. This is pretty tricky since the whistleblower’s identity is not yet known. This hasn’t stopped a flood of speculation and misinformation about the complaint.

To start with, there is speculation that the whistleblower is a partisan Democrat. A Republican congressional source told Erick Erickson last week that the complaint was “written by someone who does not like the President” but also that “regardless, the whistleblower is credible.”

That the whistleblower is not a fan of Trump should be obvious. It is unlikely that a committed Trump supporter would have filed a complaint about the president’s activities. Anyone moved to file the complaint would not be a Trump fan by definition, although it’s possible that the whistleblower didn’t start out as a Trump critic. He or she might have been a Trump supporter at one time but then been disillusioned by the president’s activities.

Other Trump defenders have argued that the whistleblower complaint was too professional and detailed to have been put together by one person. Again, this is possible since the whistleblower cites a number of other US officials in the complaint. It is not outside the scope of possibility that that more than one person may have collaborated on the complaint, but this does not undermine its credibility. The whistleblower openly acknowledges that his information came from other people in the Administration.

A third argument is that first-hand information should be required for whistleblower complaints and that hearsay was not allowed in the past. Julian Sanchez of the Cato Institute pointed out in a tweet thread that these claims are false, noting that “nothing in the relevant statute (ICWPA [Intelligence Community Whistleblower Protection Act]) or directives (PPD-19, ICD-120) has ever required that protected whistleblower disclosures contain ‘firsthand’ information.”

Much has been made of a Federalist article alleging that the whistleblower reporting form was changed just prior to the submission of the complaint to allow secondhand information. In reality, secondhand information was always allowed but firsthand information could file a complaint directly with the IG.

The old form stated, “In order to find an urgent concern ‘credible,’ the IC IG must be in possession of reliable firsthand information. The IC IG cannot transmit information via the ICWPA based on an employee’s secondhand knowledge of wrongdoing.”  

As Sanchez points out, this does not mean that secondhand complaints are not allowed but that they must be verified prior to being passed up the chain of command. In his letter to Acting DNI Joseph Maguire, Michael Atkinson, the intelligence community inspector general, said that the “complaint relating to the urgent concern ‘appears credible.’” The letter further stated that even “arguable political bias on the part of the Complainant in favor of a rival political candidate… did not change my determination that the complaint relating to the urgent concern ‘appears credible” particularly given the other information the ICIG obtained during its preliminary review.”

In the days since the existence of the complaint was made public, even President Trump and Rudy Giuliani have corroborated some of the allegations. The most damaging allegation, that the president pressured the Ukrainian president to investigate Joe Biden’s connections to the dismissal of a Ukrainian prosecutor, has been confirmed by both President Trump and Mr. Giuliani as well as the transcript of the telephone call between the two presidents.

While on the subject of Biden, there is no evidence that the former vice president did anything wrong. As Erickson wrote last week, Biden “was not in Ukraine making his own threat nor did he have the power to make a threat of withholding a billion dollars in foreign aid. Instead, Biden was operating under the power of and with the permission of the President of the United States, Barack Obama.”

An additional point of concern among Trump’s defenders is that the intelligence community is out to get Donald Trump. As part of the Deep State, they argue, the nation’s intelligence agencies are rife with fifth columnists who will stop at nothing to get Donald Trump. The problem with this argument is that government officials take their oaths to defend the Constitution, not the president. If the president breaks the law then they have a duty to call him out.

And the president apparently did break the law. In a tweet from June, long before the whistleblower scandal broke, Ellen Weintraub, chair of the Federal Election Commission, released a statement that said, “It is illegal for any person to solicit, accept, or receive anything of value from a foreign national in connection with a US election.” Damaging information about a candidate that the president may well face in the general election is definitely of high value.

“I would not have thought that I needed to say this,” Weintraub said.

In another tweet thread on Friday, Weintraub, who is a Democrat, said that she published a ““Draft Interpretive Rule Concerning Prohibited Activities Involving Foreign Nationals” on the FEC website. Weintraub claimed that “GOP FEC Commissioner Caroline Hunter took the altogether unprecedented step of objecting to its being added to the [weekly FEC] Digest and blocked publication of the whole Digest as a result.”

Finally, the Reagan Battalion on Twitter published a letter that Democratic Senators Robert Menendez, Dick Durbin, and Patrick Leahy sent to Ukrainian General Prosecutor Yuriy Lutsenko in May 2018. The letter asks Lutsenko to cooperate with Special Counsel Robert Mueller’s investigation. The allegation is that “asking the Ukrainian government to assist in investigating Trump” is “is exactly what Democrats are accusing Trump of doing.” The obvious difference is that Mueller was a federal law enforcement official charged by the Department of Justice with investigating Russian interference in the election while Donald Trump asked the Ukrainians to cooperate with an off-the-books investigation by his personal attorney.

In any event, the law is an objective standard. Saying “what about the Democrats,” would not excuse President Trump’s behavior even if it was an exactly reciprocal action. At best, it would show that both sides were corrupt, but, as your parents probably told you, two wrongs don’t make a right. To put it another way, you can’t get out of a speeding ticket by saying everyone else was driving just as fast.

The bottom line is that the attacks on the whistleblower have not undermined the underlying facts of the case. There is no evidence that the procedures or forms were changed to allow the whistleblower to come forward. Instead what we find is that the whistleblower went to great lengths to comply with applicable laws and present a well-documented case through appropriate channels, rather than leaking to the media. This is exactly what someone who learned that illegal activity was taking place should have done.

The key point for the coming weeks is not whether the whistleblower had an axe to grind or was part of an organized effort. The focus should be on whether the whistleblower’s allegations were factual or not. So far, several parts of the whistleblower account, which has already been found credible by the inspector general, have already been verified by other sources. Perhaps that’s why the Trump Administration is attempting to steer the discussion away from the facts.  

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