Ukraine Whistleblower Appears to Skirt Law by Going Straight to Rep. Adam Schiff’s Office
The impeachment drive by House Democrats appears to be focused on the July 25 telephone call between President Donald Trump and Ukrainian President Volodymyr Zelenskyy, which came to light through a whistleblower complaint.
That whistleblower complaint,
and the circumstances surrounding its filing Aug. 12 with the Office of the
Intelligence Community Inspector General, raise their own questions.
The relevant law,
called the Intelligence Community Whistleblower Protection Act, details how “an
employee of the intelligence community” may bring to Congress’ attention
information about wrongdoing such as “violation of laws” or “abuse of
The complaint against
Trump plainly acknowledges that these procedures apply to this whistleblower.
So what are the procedures? First, the law expressly prohibits a whistleblower from going directly to Congress without first submitting a complaint to the inspector general, currently State Department veteran Michael Atkinson.
The New York Times reported
Oct. 2 that this whistleblower did exactly the opposite by first approaching a
House Intelligence Committee staffer with “vague” accusations about the president.
According to the Times,
the aide passed the information along to Intelligence Committee Chairman Adam
Schiff, D-Calif., who then claimed
to the press that his staff had not spoken to the whistleblower at all.
The importance of the
law’s procedure is obvious. While it encourages well-intended intelligence
community employees to bring to light information about wrongdoing, it also
prevents rogue employees from inciting partisan attacks or causing serious
These procedures are a
check, a buffer to lessen that possibility.
Under the law’s procedures, the inspector general determines whether a complaint “appears credible.” The policy in place when this complaint was filed, for example, required that it be based on firsthand information. (We explore that issue here.)
If the inspector
general finds the complaint credible, he passes the complaint to the director
of national intelligence, who then must share the complaint with intelligence
committees in the House and Senate.
If the inspector general
does not find the report credible, the whistleblower may transmit his report to
the congressional intelligence committees directly, but only if he first does
two things: (1) gives his complaint to the director of national intelligence along
with notice of his intent to provide it to Congress, and (2) obtains and
follows instructions from the director on how to contact the congressional
A whistleblower also
may inform a member of the congressional intelligence committees of the existence,
but not the contents, of his complaint after once again submitting the complaint
to the inspector general.
The law requires a
whistleblower to comply with its disclosure procedures for complaints about
matters of “urgent concern.”
If what the Times calls
“vague” accusations brought to the House Intelligence Committee staffer did not
rise to that, the whistleblower may not have broken the law, but he skirted its
provisions very closely. At the very least, as the Times put it, the
whistleblower’s actions show “how determined he was to make known his
This is exactly why
Congress enacted the Intelligence Community Whistleblower Protection Act, and
why intelligence community employees are required to follow the law.