President Trump and Republicans are excitedly drawing attention to a breaking story in the New York Times that reports that the whistleblower gave advance notice to Rep. Adam B. Schiff (D-Calif.) about the subject of his complaint, before filing it to the intelligence community’s inspector general.
And it won’t be legitimate or valid based on the known facts, no matter how hard Trump and his allies spin to make it so.
What the Times says
The core news is that the whistleblower approached an aide on the House Intelligence Committee (which Schiff chairs) with his concerns, after growing worried that his initial effort to air his allegations might get frustrated.
That aide conveyed some vague amount of those concerns (but not the whistleblower’s identity) to Schiff, but urged the whistleblower to get a lawyer and file a complaint with the inspector general.
The Times piece explicitly says that in so doing, the aide was “following the committee’s procedures.” There’s no evidence Schiff was told of the whistleblower’s identity, or even that he knows it now, in the Times piece or anywhere else.
Trump is lying to create a fake scandal
Trump wasted no time in lying about this new report. He claimed it shows Schiff collaborated with the whistleblower on the complaint, calling it a “scam.” The story says no such thing, and there is nothing in it to undercut the substantive complaint itself.
House Minority Leader Kevin McCarthy (R-Calif.) also claimed Schiff and the whistleblower got caught “orchestrating” the complaint, and that Democrats “rigged” this process.
But there’s nothing in the story that says anything about Schiff having any substantive input into the whistleblower’s complaint. It says Schiff’s aide reported to him some of what the whistleblower said, and that the aide told the whistleblower to get a lawyer and go to the inspector general.
In so doing, the aide advised the whistleblower on how to follow the law. That’s not “rigging” the process. It’s the opposite.
Indeed, the Times piece itself describes the significance of this news by claiming it shows “how determined” the whistleblower was to make his discovery known. This, by itself, does not raise doubts about his motives or truthfulness, or about the complaint itself, in any way. All it does is underscore how serious the whistleblower thought his discovery was, and how urgent he thought it was to get it to Congress
That outcome is precisely what Trump’s top officials did work so hard to block, so the whistleblower was right to be worried that it might not get to Congress.
What the law requires of the whistleblower
Here there is some gray area, and it’s possible the whistleblower might be vulnerable in one way. The statute says any “employee” who wants to report questionable information “may” report it to the inspector general, who then evaluates it, and if he finds it “credible” and “urgent” as defined in the statute, the director of national intelligence “shall” pass it to Congress.
“This strictly and solely provides an authorized proper channel,” Bradley Moss, a national security lawyer and advocate for whistleblowers, tells me.
Moss said it’s not unusual for would-be whistleblowers to first go to a congressional intelligence committee for advice on how to proceed. This is what the whistleblower did.
It is possible, Moss noted, that the whistleblower’s initial move might cost him some protections against retaliation afforded whistleblowers under the statute. But even this is uncertain, Moss said. If the CIA brass were to learn the whistleblower’s identity, it might try to fire him by arguing he stepped outside procedure.
But even then, the whistleblower could challenge that administratively at the agency, and would stand a decent chance of prevailing, Moss said.
Crucially, the fact of this procedural vulnerability, in and of itself, simply doesn’t show that the whistleblower abused the process, Moss added. That’s because, as noted, this is not unusual, and because after getting advised, the whistleblower did follow what the law requires. What’s more, the inspector general did find the complaint credible and procedurally legitimate.
And of course, the complaint itself has been confirmed in many details by the rough transcript of Trump’s call with the Ukrainian president that the White House itself released.
What Schiff did
There’s some suggestion that Schiff, due to the early heads-up, ultimately went public more quickly about the blocked complaint. But this isn’t seriously problematic. The timeline here is that the inspector general first alerted the intelligence committees that he’d received the complaint and that the DNI had unlawfully refused to transmit it to them. It was after this that Schiff demanded the complaint.
“Schiff went public only after receiving a letter from the inspector general indicating the DNI had not followed process requirements,” Margaret Taylor, senior editor at LawfareBlog, told me. “And this process issue is irrelevant to the substance of the impeachment inquiry — the president’s own conduct, which he does not deny.”
There’s just nothing serious here. There is a convention in political journalism in which the neutral editorial voice will say something is newsworthy because one side will use it as “ammunition” against the other. Or, as the Times puts it, this will “thrust” Schiff into controversy.
But the known facts don’t render this “ammunition” for any legitimate criticism, and it shouldn’t “thrust” Schiff into any controversy, simply by virtue of the fact that Trumpworld will noisily try to make it the case. And we should all say so.