Deleted Firsthand Knowledge Requirement For Whistleblowers Implicates Another Federal Agency

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?
Matt Beebe
By

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 statutory reference. Here’s page six of the revised CRC report.

This is an important point, as unless a whistleblower report qualifies as an “urgent concern,” the statutory requirements for timely notification of congressional intelligence committees do not apply, and under existing law, the separation of powers would prevail. Accordingly, the executive branch would not have been obligated to transmit the contents of a complaint for the purposes of congressional oversight unless the complaint is a matter of “urgent concern.”

Contrary to the CRS assertion, the statute is explicit on this point, as Congress has defined it in 50 U.S.C. §3033(k)(5)(G):

Note the final clause of paragraph (i) states: “but does not include differences of opinions concerning public policy matters.” If the law was faithfully applied during the adjudication process, this complaint could never have been deemed an “urgent concern,” and therefore would not have progressed past the initial complaint stage.

Two Other Places the Report Misrepresents the Statutes

There were two other key assertions in the updated CRS analysis that misrepresented the statutes and happened to be lacking the typical footnotes meticulously cross-referencing the report’s summary statement to the underlying statutes. These two assertions are in the section on “addressing disagreements that may arise between the IC IG and the DNI” and were specifically related to the IC IG’s conditional authority under the statute to bypass the DNI’s decision and report the complaint directly to Congress. Here’s a quote from page five of the updated report:

All four sub-bullets in this section are explicit conditions to the IC IG’s authority to “immediately notify, and submit a report to the congressional intelligence committees.” Each of the four conditions mirror corresponding clauses in the underlying statute, 50 U.S.C. §3033(k)(3)(A), except for a critical omission from the two that are not footnoted.

In the underlying statute, 50 U.S.C. §3033(k)3(A)iii & iv both have following additional text included at the end of the clause: “current or former official described in clause (ii),”

The omission of “current or former official described in clause (ii)” in the summary analysis provided by CRS is troubling, since when you cross-reference “clause (ii)” in the statute you learn that there are precisely three categories of people that would be subject to these two clauses—none of which includes the president of the United States.

While the first misrepresentation obscures the fact that a complaint relating to “differences of opinions concerning public policy matters” should have been excluded this from congressional oversight in the first place, the next two misrepresentations provided cover for the IC IG to circumvent the DNI’s statutorily appropriate decision to not consider the complaint an “urgent concern,” and therefore not subject to further action and congressional notification.

Something Fishy Seems to Be Going on Here

It should concern every American that the timing and substance of the updated CRS analysis advances a particular partisan narrative at the expense of a clear application of the law. The idea that the IC IG can forward a report to Congress about the president and color a complaint about public policy matters as an “urgent concern” to trigger congressional oversight is not supported by the underlying statutes at all.

Additionally, the timing of the updated report’s release raises additional questions about whether certain congressional staff or members were illegally coordinating with the whistleblower during this IC IG’s review process.

It should concern every American that the timing and substance of the updated CRS analysis advances a particular partisan narrative.

I reached out to Michael E. DeVine, the listed author of the CRS report, for additional information on the timing of the updates and for comment on the alleged intentional misrepresentations of the statute and had not heard back as of press time.

At least one member of Congress has publicly commented on the controversy, with Rep. Thomas Massie chiming in early Saturday morning on Twitter saying the claims outlined in this report were “sad and troubling.” He elaborated on the implications for the CRS moving forward, saying “I have a high opinion of them, which is why what you’ve found is disappointing to me… They have otherwise been pretty good at avoiding the partisanship and congressional clown games.”

Privately, congressional staff has been even more direct, saying “It’s a big deal,” and anticipated there would be “subpoenas and discovery of CRS staff emails, communications, etc.” The Democrats may control the gavels in the increasingly divided House, but the Republicans appear ready to dig in on this. And they should.

There are barely 400 days till the election. That’s lots of time for more investigations and “congressional clown games.” Strap in.

For nearly twenty years, Matt Beebe served as a countermeasures engineer in the Air Force and a contractor in the intelligence community before launching an IT and computer security firm in San Antonio, Texas. He is active in Texas politics and can be found on Twitter at @votebeebe.
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