Intel Community Secretly Gutted Requirement Of First-Hand Whistleblower Knowledge
Federal records show that the intelligence community secretly revised the formal whistleblower complaint form in August 2019 to eliminate the requirement of direct, first-hand knowledge of wrongdoing.
September 27, 2019
Between May 2018 and August 2019, the intelligence community secretly eliminated a requirement that whistleblowers provide direct, first-hand knowledge of alleged wrongdoings. This raises questions about the intelligence community’s behavior regarding the August submission of a whistleblower complaint against President Donald Trump. The new complaint document no longer requires potential whistleblowers who wish to have their concerns expedited to Congress to have direct, first-hand knowledge of the alleged wrongdoing that they are reporting.
The brand new version of the whistleblower complaint form, which was not made public until after the transcript of Trump’s July 25 phone call with the Ukrainian president Volodymyr Zelensky and the complaint addressed to Congress were made public, eliminates the first-hand knowledge requirement and allows employees to file whistleblower complaints even if they have zero direct knowledge of underlying evidence and only “heard about [wrongdoing] from others.”
The internal properties of the newly revised “Disclosure of Urgent Concern” form, which the intelligence community inspector general (ICIG) requires to be submitted under the Intelligence Community Whistleblower Protection Act (ICWPA), show that the document was uploaded on September 24, 2019, at 4:25 p.m., just days before the anti-Trump complaint was declassified and released to the public. The markings on the document state that it was revised in August 2019, but no specific date of revision is disclosed.
The complaint alleges that President Donald Trump broke the law during a phone call with the Ukrainian president. In his complaint, which was dated August 12, 2019, the complainant acknowledged he was “not a direct witness” to the wrongdoing he claims Trump committed.
A previous version of the whistleblower complaint document, which the ICIG and DNI until recently provided to potential whistleblowers, declared that any complaint must contain only first-hand knowledge of alleged wrongdoing and that complaints that provide only hearsay, rumor, or gossip would be rejected.
“If you think that wrongdoing took place, but can provide nothing more than second-hand or unsubstantiated assertions, [the Intelligence Community Inspector General] will not be able to process the complaint or information for submission as an ICWPA,” the form concluded.
Markings on the previous version of the Disclosure of Urgent Concern form show that it was formally approved on May 24, 2018. Here is that original Disclosure of Urgent Concern form prior to the August 2019 revision:
Here is the revised Disclosure of Urgent Concern form following the August 2019 revision:
The Ukraine call complaint against Trump is riddled not with evidence directly witnessed by the complainant, but with repeated references to what anonymous officials allegedly told the complainant: “I have received information from multiple U.S. Government officials,” “officials have informed me,” “officials with direct knowledge of the call informed me,” “the White House officials who told me this information,” “I was told by White House officials,” “the officials I spoke with,” “I was told that a State Department official,” “I learned from multiple U.S. officials,” “One White House official described this act,” “Based on multiple readouts of these meetings recounted to me,” “I also learned from multiple U.S. officials,” “The U.S. officials characterized this meeting,” “multiple U.S. officials told me,” “I learned from U.S. officials,” “I also learned from a U.S. official,” “several U.S. officials told me,” “I heard from multiple U.S. officials,” and “multiple U.S. officials told me.”
The repeated references to information the so-called whistleblower never witnessed clearly run afoul of the original ICIG requirements for “urgent concern” submissions. The change to the “urgent concern” submission form was first highlighted on Twitter by researcher Stephen McIntyre.
The complainant also cites publicly available news articles as proof of many of the allegations.
“I was not a direct witness to most of the events” characterized in the document, the complainant confessed on the first page of his August 12 letter, which was addressed to Rep. Adam Schiff (D-Calif.) and Sen. Richard Burr (R-N.C.), the respective chairmen of the House and Senate intelligence committees. Hearsay is generally inadmissible as evidence in U.S. federal and state courts since it violates the constitutional requirement that the accused be given the opportunity to question his accusers.
The anti-Trump complaint also made several false claims that have been directly refuted and debunked. While the complaint alleged that Trump demanded that Ukraine physically return multiple servers potentially related to ongoing investigations of foreign interference in the 2016 elections, the transcript of the call between Trump and Zelensky shows that such a request was never made.
The complainant also falsely alleged that Trump told Zelensky that he should keep the current prosecutor general at the time, Yuriy Lutsenko, in his current position in the country. The transcript showed that exchange also did not happen.
Additionally, the complaint falsely alleged that T. Ulrich Brechbuhl, a U.S. State Department official, was a party to the phone call between Trump and Zelensky.
“I was told that a State Department official, Mr. T. Ulrich Brechbuhl, also listened in on the call,” the complaint alleged. Shortly after the complaint was released, CBS News reported that Brechbuhl was not on the phone call.
In a legal opinion that was released to the public along with the phone call transcript, the Department of Justice (DOJ) Office of Legal Counsel (OLC) determined that the complainant’s submission was statutorily deficient and therefore was not required to be submitted to Congress. The White House nonetheless declassified and released the document to Congress late Wednesday evening.
“The complaint does not arise in connection with the operation of any U.S. government intelligence activity, and the alleged misconduct does not involve any member of the intelligence community,” the September 3 OLC opinion noted. “Rather, the complaint arises out of a confidential diplomatic communication between the President and a foreign leader that the intelligence-community complainant received secondhand.”
“The question is whether such a complaint falls within the statutory definition of “urgent concern” that the law requires the DNI to forward to the intelligence committees,” the OLC opinion continued. “We conclude that it does not.”
It is not known precisely when the August 2019 revision to the whistleblower complaint form was approved, nor is it known which, if any, version of the Disclosure of Urgent Concern form the complainant completed prior to addressing his complaint to Congress.
Reached by phone on Friday afternoon, a Director of National Intelligence official refused to comment on any questions about the secret revision to the whistleblower form, including when it was revised to eliminate the requirement of first-hand knowledge and for what reason.
Sean Davis is the co-founder of The Federalist.
ANALYSIS: Hunter Biden tied to China firm with questionable dealings
| October 01, 2019 12:00 AM
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A high-ranking Chinese businessman was charged by the Justice Department with global corruption and bribery in 2017, and the first call he made after his arrest was to Vice President Joe Biden’s brother, James Biden, who thinks the call was meant for Joe Biden’s son, Hunter.
Patrick Ho, the lieutenant to the founder of the multibillion-dollar Chinese conglomerate CEFC China Energy, was indicted under the Foreign Corrupt Practices Act in the Southern District of New York for his role in a global money laundering and bribery scheme aimed at government officials in Africa. The Justice Department also accused Ho of helping with Iranian sanctions evasion and working to use the Chinese company’s connections to sell weaponry to Chad, Libya, and Qatar.
Ho immediately tried reaching out to the younger Biden for help because that summer, as investigators circled, Hunter agreed to represent Ho as part of Hunter’s efforts to work out a liquified natural gas deal worth tens of millions of dollars with CEFC China Energy’s leader Ye Jianming.
The vice president’s financier brother said he was surprised by the call from Ho, but told the Chinese businessman how to get in touch with his nephew.
“There is nothing else I have to say,” James Biden told the New York Times in 2018. “I don’t want to be dragged into this anymore.”
The lucrative deal Biden set up with CEFC China Energy fell apart when Ye Jianming disappeared after being detained by Chinese authorities in 2018, and Ho was sentenced to three years in federal prison in March.
Although much of the scrutiny of Biden’s global business dealings focuses on his controversial $50,000-per-month position with the Ukrainian energy company Burisma Holdings at the same time then-Vice President Joe Biden pressured the Ukrainian government to fire prosecutor General Viktor Shokin, his dealings with Chinese businessmen could cause the 2020 Democratic front-runner serious headaches, too.
Kathleen Biden, the younger Biden’s now-ex-wife, accused him in divorce filings of “spending extravagantly on his own interests (including drugs, alcohol, prostitutes, strip clubs, and gifts for women with whom he has sexual relations), while leaving the family with no funds to pay legitimate bills.” The filing also discusses a "large" diamond, worth $80,000 he claimed he no longer had. In a later interview, Hunter said the diamond — which he claimed was only worth $10,000 — was a gift from Ye Jianming.
Ye, who had ties to the Chinese Communist Party and told Caixin Global that his company “aims to serve the [Chinese] state’s strategy,” was on a mission to make inroads among powerful Democrats and Republicans, setting his sights on the former vice president's son, who served on the board of World Food Program USA, a nonprofit that raises money for the United Nations World Food Programme. Biden said he hoped Ye would make a major donation to the fund, but also offered to help Ye find investment opportunities inside the United States.
Biden says he met Ye for the first time in Miami, and that two of Biden’s associates surprised him when they gave Ye Scotch valued at thousands of dollars. Ye sent a thank-you card and a 2.8-carat diamond to Hunter’s hotel room. Hunter says he handed the diamond off to his associates and doesn’t know what happened with it, but denies it was meant as a bribe.
“What would they be bribing me for? My dad wasn’t in office,” Hunter told the New Yorker. “I knew it wasn’t a good idea to take it. I just felt like it was weird.”
Hunter negotiated a $40 million investment deal with Ye related to a liquefied natural gas project on Monkey Island in Louisiana.
At the same time, Ye told Hunter that one of his business associates, Ho, was being investigated in the U.S., and Hunter agreed to represent him. The deal between Hunter and Ye crashed almost immediately when Ho was arrested by U.S. law enforcement at John F. Kennedy Airport in 2017. A few months later, the deal was officially dead when Ye was detained by Chinese authorities, reportedly at the orders of Chinese President Xi Jinping.
“Patrick Ho schemed to bribe the leaders of Chad and Uganda in order to secure unfair business advantages for the Chinese energy company he served,” Manhattan U.S. Attorney Geoffrey Berman said in March. “His actions were brazen, including offering the president of Chad $2 million in cash, hidden in gift boxes. Foreign corruption undermines the fairness of international markets, erodes the public’s faith in its leaders, and is deeply unfair to the people and businesses that play by the rules.”
Biden said to The New Yorker this summer he didn't think Ye was "a shady character at all" and attributed the situation to "bad luck."
