DEBRA D’AGOSTINO, FOUNDING PARTNER OF THE FEDERAL PRACTICE GROUP, SPEAKS WITH AP ON HEARSAY AND WHISTLEBLOWING REPORTING
Posted By fedpractice || 1-Oct-2019
AP FACT CHECK: Trump’s fiction about whistleblower complaint
President Donald Trump and Vice President Mike Pence participate in an Armed Forces welcome ceremony for the new chairman of the Joint Chiefs of Staff, Gen. Mark Milley, Monday, Sept. 30, 2019, at Joint Base Myer-Henderson Hall, Va. (AP Photo/Evan Vucci)
WASHINGTON (AP) — President Donald Trump and his GOP allies are making groundless accusations that a whistleblower complaint by a CIA officer was improperly filed because it was not based on first-hand knowledge.
In tweets and public statements, they assert that a whistleblower cannot submit a complaint if it relies on so-called hearsay or second-hand information. They also suggest nefarious behavior — “deep state” as one White House adviser put it — in the circumstances surrounding the form for the complaint, which alleged that Trump abused his office in pressing for a Ukrainian investigation of a Democratic rival, Joe Biden.
Their statements were rebutted Monday by the inspector general for the intelligence community and misrepresent reality.
GOP HOUSE MINORITY LEADER KEVIN McCARTHY: “Whistleblowers were required to provide direct, first-hand knowledge of allegations…but just days before the Ukraine whistleblower came forward, the IC secretly removed the requirement from the complaint form.” — tweet Saturday.
TRUMP: “Who changed the long standing whistleblower rules just before submittal of the fake whistleblower report? Drain the swamp!” — tweet Monday.
STEPHEN MILLER, White House senior adviser: “This is a deep-state operative, pure and simple. People who haven’t been in the federal government, who haven’t worked in the White House may not appreciate this, but the situation is you have a group of unelected bureaucrats who think that they need to take down this president.” — interview on “Fox News Sunday.”
THE FACTS: There was nothing improper in the submission of the whistleblower complaint. No whistleblower law was changed and nothing under that law requires the complaints to have first-hand information. The IG’s office also said Monday that it had determined that the whistleblower did have some first-hand, “direct knowledge of certain alleged conduct.”
It’s not true that the whistleblower could “provide nothing more than second-hand or unsubstantiated assertions,” the IG said.
Intelligence community workers have long been able to blow the whistle based on second-hand or “hearsay” information. The law only requires federal workers to have a “reasonable belief” of misconduct in order to file a complaint, according to Debra D’Agostino, a federal employment lawyer.
In this case, the whistleblower flagged in part Trump’s July call to Ukraine President Volodymyr Zelenskiy in a typed, nine-page document addressed to the House Intelligence Committee. The IG said that while the whistleblower was not a direct witness to the call, the IG separately obtained other information during its preliminary review that supported the allegations to deem them credible.
Pointing to suspicious activity, McCarthy cites the removal of some information from the standardized complaint form, which previously stressed the need for first-hand information for an IG to determine the complaint credible. The IG said it had removed that language from the form earlier this year because it determined that “it could be read – incorrectly – as suggesting that whistleblowers must possess first-hand information in order to file an urgent concern complaint with the congressional intelligence committees.”
By Amanda Seitz and Hope Yen
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