The Federalist is reporting that the "whistleblower" in the Ukraine affair "concealed contacts" in their submission about prior contact with Congress.

According to Fox News investigative reporter Catherine Herridge, ICIG Michael Atkinson testified before the House Permanent Select Committee on Intelligence (HPSCI) that the anti-Trump complainant, whose identity has not been made public, did not inform the ICIG in his complaint that he or his team had already contacted Democratic staff working for Rep. Adam Schiff, D-Calif., the chairman of the House intelligence committee.

Does that mean that the statutory safeguards afforded to whistleblowers are waived? And if so, which body so determines?

The article does say that the person should be facing felony false statements charges for not disclosing, but that is not the same thing.

  • @fizz the form came out later, so I wouldn't expect Fox to have reported it at the time. I will modify to say a lie of omission. – user9790 Oct 5 '19 at 18:22
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    I do not understand the many downvotes on this question. It seems like a perfectly reasonable and legitimate question. – Burt Oct 7 '19 at 0:25
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    "The article does say that the person should be facing felony false statements charges for not disclosing" This could be driving the down votes (I did not down vote). It is a rather inflammatory legal opinion issued by an opinion writer, not a member of the justice department. – jalynn2 Oct 8 '19 at 12:50
  • CBS has now covered the claim underlying your question: "The whistleblower acknowledged reaching out to the committee, but claimed that nothing substantial was discussed and that the staff member directed them to go through official channels, according to the "Memorandum of Investigative Activity," provided to House and Senate Intelligence Committee leadership by intelligence community inspector general (ICIG) Michael Atkinson. The form is dated October 18 [...]" – Fizz Nov 23 '19 at 20:51
  • "and documents the October 8 outreach by the whistleblower. According to the document, the whistleblower reported to the ICIG investigator that the committee staffer advised: "'Do it right, hire a lawyer, and contact the ICIG.' So that is what the COMPLAINANT did. At the time, COMPLAINANT did not even know what the ICIG was. The whistleblower felt that "[b]ased on getting guidance on a procedural question, and that no substance of the actual disclosure was discussed, COMPLAINANT did not feel, based on the way the form question was worded, that it was necessary to check that box."" – Fizz Nov 23 '19 at 20:54

Does that mean that the statutory safeguards afforded to whistle blowers are waived?

Assuming the whistle blower violated 18 U.S. Code § 1001, then yes. A violation of 18 U.S. Code § 1001, when making a whistle blower complaint, effectively waives (or, better, voids) whistler blower protection because the complaint would have not been in accordance with applicable provisions of law (5 U.S. Code § 2302 (b)(9)(C)).

And if so, which body so determines?

The Inspector General of the Intelligence Community must first determine that 18 U.S. Code § 1001 has been violated, or so likely to have been, that a referral to the Department of Justice is required. (Government officials are required to report felonies; not mistakes.)

50 U.S. Code § 3033.Inspector General of the Intelligence Community


(3)The Inspector General is authorized to receive and investigate, pursuant to subsection (h), complaints or information from any person concerning the existence of an activity within the authorities and responsibilities of the Director of National Intelligence constituting a violation of laws, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to the public health and safety. Once such complaint or information has been received from an employee of the intelligence community—

(A)the Inspector General shall not disclose the identity of the employee without the consent of the employee, unless the Inspector General determines that such disclosure is unavoidable during the course of the investigation or the disclosure is made to an official of the Department of Justice responsible for determining whether a prosecution should be undertaken, ...

18 U.S. Code § 1001.Statements or entries generally

(a)Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully

(1)falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2)makes any materially false, fictitious, or fraudulent statement or representation; or

(3)makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

[Emphasis added.]

5 U.S. Code § 1221.Individual right of action in certain reprisal cases

(a)Subject to the provisions of subsection (b) of this section and subsection 1214(a)(3), an employee, former employee, or applicant for employment may, with respect to any personnel action taken, or proposed to be taken, against such employee, former employee, or applicant for employment, as a result of a prohibited personnel practice described in section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the Merit Systems Protection Board.

5 U.S. Code § 2302.Prohibited personnel practices

(b)Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—

(9)take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—

(C)cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law;

  • Can you elaborated on the assumption that "the whistle blower violated 18 U.S. Code § 1001". Is there any evidence to support that assumption? – JJJ Oct 5 '19 at 15:31
  • Except that you don't provide a source on that question, you provide a source on 18 U.S. Code § 1001 which deals with false statements. The does that mean question refers to the waiving of "safeguards afforded to whistleblowers". You answer that question with yes citing title 18 which does not deal with whistleblower protection. – JJJ Oct 5 '19 at 15:57
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    @JJJ - The second sentence of the question required an assumption based on the first sentence. Does that mean ... requires an assumption in order to answer the question posed in the second sentence. I, personally, have made no assumption about whether the claim is true and I see no evidence that it is. It is simply the way in which the question was posed – Rick Smith Oct 5 '19 at 16:03
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    @JJJ - It doesn't relate to Congress. It is strictly between the WB and the IG. An individual with a top secret clearance and knowing that the transcript and more was transferred to a secure server; would not make any material statements over the phone. Such a call to the intelligence committee would have been for no more than advice on how to proceed. I understand that is what was reported. If there were material statements, it would have been necessary to report the contact. Requesting advice is not material. (molehill --> MOUNTAIN.) – Rick Smith Oct 5 '19 at 17:36
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    @JJJ - No, firing a WB for contacting the committee would qualify as a personnel action. The clause protects against such action as long as the WB followed the law. – Rick Smith Oct 5 '19 at 17:54

The Federalist is reporting that the "whistleblower" in the Ukraine affair lied in their submission about prior contact with Congress.

I think it is unclear how the whistleblower filled in the form. CNN published an annotated version of the complaint but it does not say what other steps the complainant has taken nor does it follow the form with a question asking about such steps.

Therefore, it is not possible for us to say with public information if this particular whistleblower has lied in their submission. We do know that the whistleblower has not lied on this matter in the complaint as published by CNN (and others) because what is alleged by the reporting in your article is not stated in the published complaint.

Does that mean that the statutory safeguards afforded to whistleblowers are waived? And if so, which body so determines?

I don't think there's a basis for that. It does not seem to be something the Federalist's article you link claims either, if it does please quote the excerpt in which it is claimed.

The article does say that the person should be facing felony false statements charges for not disclosing, but that is not the same thing.

That's basically covered by Rick Smith's answer. I should clarify that that only applies if the complaint is deemed to be in violation of 18 U.S.C. 1001 as claimed in the Federalist article.

From what I can find on whistleblowers.gov, it seems complainants are not required to follow the form so then the question of other actions may not have come up so not answering the question means there is no instance of falsifying, concealing or covering up such other actions.

  • I did not downvote, but CNN has only summarized the form. The Federalist makes an explicit claim "An official confirms the whistleblower failed to disclose prior contacts with House Democrats regarding the allegations of his August 12 complaint. The box in Part 3, Question 1 of the form regarding contacts with Congress or congressional committees was unchecked and left blank." However their credibility in this matter is pretty low given their recent record – Fizz Oct 5 '19 at 17:37
  • @Fizz there is also the direct testimony of the IG in this case. – user9790 Oct 5 '19 at 17:39
  • @KDog rather than saying that, please quote the relevant part of that testimony and edit it into the question. – JJJ Oct 5 '19 at 17:41

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