Category: Ignorance of Law

Donald Trump’s false claim about a change in whistleblower rules

President Donald Trump raised the specter of shady bureaucratic doings that allowed a whistleblower’s complaint to move forward when ordinarily it wouldn’t have.

“Who changed the long standing whistleblower rules just before submittal of the fake whistleblower report?” Trump tweeted Sept. 30. “Drain the swamp!”

Trump was far from the only one saying the rules were changed “just before” the report that ignited an impeachment inquiry was filed Aug. 12. House Republican Leader Kevin McCarthy tweeted the same thing Sept. 28.

“Whistleblowers were required to provide direct, first-hand knowledge of allegations,” McCarthy wrote. “But just days before the Ukraine whistleblower came forward, the IC (Inspector General of the Intelligence Community) secretly removed that requirement from the complaint form.” Trump’s lawyer Rudy Giuliani echoed the same point Sept. 29.

All three tweets lead back to the same article on the conservative website Federalist. 

All three are wrong. 

• First-hand knowledge by a whistleblower has never been required since the law protecting intelligence community whistleblowers was enacted.

• Inspector General staff, who investigate a charge, need first-hand information to move a complaint forward — as they did in this case.

• The current complaint was based on both first- and second-hand information.The Federalist article

The Sept. 27 article claimed, “Between May 2018 and August 2019, the intelligence community secretly eliminated a requirement that whistleblowers provide direct, first-hand knowledge of alleged wrongdoings.”

The evidence comes from a tweet thread started by Stephen McIntyre on the morning the Federalist article appeared. McIntyre is a former mining company director who created the Climate Audit blog, which questions the official data behind climate change.

From the thread, a few key points emerge:

As of May 24, 2018, the Inspector General of the Intelligence Community’s Urgent Concern disclosure form — the form whistleblowers fill out  — offered three choices to describe how the whistleblower got his/her information: personal knowledge, heard from other people, and other sources.

The current form offers just two choices: personal knowledge or “heard about it from others.” That form dates from August 2019.

The previous form also included a section under the subhead “First-hand information required.”

“In order to find an urgent concern ‘credible,’ the IC IG (Intelligence Community Inspector General) must be in possession of reliable, first-hand information. The IC IG cannot transmit information via the ICWPA (Intelligence Community Whistleblower Protection Act) based on an employee’s second-hand knowledge of wrongdoing. This includes information received from another person, such as when a fellow employee informs you that he/she witnessed some type of wrongdoing. (Anyone with first-hand knowledge of the allegations may file a disclosure in writing directly with the IC IG.) Similarly, speculation about the existence of wrongdoing does not provide sufficient basis to meet the statutory requirements of the ICWPA. If you think wrongdoing took place, but can provide nothing more than secondhand or unsubstantiated assertions, IC IG will not be able to process the complaint or information for submission as an ICWPA.”

The current reporting form lacks that section.

Based on these facts, Trump and other Republicans asserted that the rules for whistleblowers were changed “just before” the current complaint was filed. Actually, only the forms were changed. The rules stayed the same.The actual sequence

The whistleblower who triggered the impeachment inquiry filled out the earlier version of the form, and no rules were changed.

The Office of Inspector General issued a statement Sept. 30 saying that “the Disclosure of Urgent Concern form the Complainant submitted on August 12, 2019, is the same form the IC IG has had in place since May 24, 2018.”

The inspector general’s office underscored that the whistleblower received the section about the need for first-hand evidence before a claim would go on to the next step.

So changes to the form took place after the whistleblower filed.

As for the rules on what is required, those have been the same since 2014 under an order issued by the Director of National Intelligence. Intelligence Community Directive 120 defines a protected disclosure as one that the employee “reasonably believes evidences a violation of any law, rule or regulation.”

The statement from the Inspector General’s office emphasized the reasonable belief standard.

“By law the Complainant – or any individual in the Intelligence Community who wants to report information with respect to an urgent concern to the congressional intelligence committees – need not possess first-hand information in order to file a complaint,” the statement said. “The IC IG cannot add conditions to the filing of an urgent concern that do not exist in law.”

The section about the need for first-hand information has to do with the investigation that follows a whistleblower’s report, not a requirement for the report itself.

“This is their way of tempering the whistleblower’s expectations,” said analyst Irvin McCullough, with the nonprofit Government Accountability Project. (McCullough’s father served as inspector general until 2017 and now represents the whistleblower.) “It says we might not find enough to support your complaint.”

The latest IG statement says it changed its forms after the current affair unfurled, because it understood some parts “could be read — incorrectly — as suggesting that whistleblowers must possess first-hand information in order to file an urgent concern complaint.”

The statement noted that the whistleblower checked both boxes to indicate he/she had both first and second-hand information. 

It also notes that its investigation found the report credible and urgent.

The White House had no comment.Our ruling

Trump said, “Longstanding whistleblower rules (were changed) just before submittal of the fake whistleblower report.”

The current rules have been in place since 2014. Whistleblowers can provide either first or second-hand information, or both. The current whistleblower filled out a form that dates from May 2018. Whatever changes existed on that form date from 14 months before the present claim was filed.

Investigators require more than second-hand information in order to move a complaint forward, but that is not a requirement before a complaint can be filed.

The Inspector General’s office changed its forms after the whistleblower filed, but those changes had no bearing on the rules under which a claim would be processed.

We rate this claim False.

[Politifact]

Trump suggests arresting Adam Schiff for ‘treason’

President Donald Trump and his allies on Monday ratcheted up their campaign against Rep. Adam Schiff as the White House’s Ukraine scandal entered its second week — with Trump again suggesting the House Intelligence chairman committed treason.

Locked in a defensive crouch and staring down an impeachment inquiry, Trump continued to batter the California Democrat for allegedly mischaracterizing his July phone call with newly elected Ukrainian President Volodymyr Zelensky.

“Rep. Adam Schiff illegally made up a FAKE & terrible statement, pretended it to be mine as the most important part of my call to the Ukrainian President, and read it aloud to Congress and the American people,” Trump wrote on Twitter. “It bore NO relationship to what I said on the call. Arrest for Treason?”

During Trump’s conversation with Zelensky, the president urged his foreign counterpart to work with Attorney General William Barr to investigate former Vice President Joe Biden and his son.

After Schiff offered a knowingly exaggerated version of the call’s transcript before a meeting of his committee last Thursday, conservative commentators and Republican lawmakers were quick to castigate the congressman on social media and cable news.

The president was unwilling to drop the issue Monday afternoon, complaining about Schiff’s remarks to reporters in the Oval Office following a swearing-in ceremony for his new Labor secretary, Eugene Scalia.

“Adam Schiff — representative, congressman — made up what I said. He actually took words and made it up,” Trump said, as Scalia’s family looked on. “The reason is, when he saw my call to the president of Ukraine, it was so good that he couldn’t quote from it. Because there was nothing done wrong. It was perfect.”

Trump previously demanded Sunday that Schiff be “questioned at the highest level for Fraud & Treason,” and claimed that his “lies were made in perhaps the most blatant and sinister manner ever seen in the great Chamber.”

Rudy Giuliani, Trump’s personal attorney, kept up that line of attack Monday, charging that Schiff “didn’t embellish” but instead “lied about” the memo the White House released last week summarizing the Zelensky call.

“He stood in front of the American people with millions of people listening and he lied,” Giuliani told the Fox Business Network. “He put on a stupid phony show, just like he lied when he said he had direct evidence of Russian collusion.”

Eric Trump, the president’s son, also assailed Schiff on Monday, telling the hosts of “Fox & Friends” that the congressman “is exactly why we need term limits in this country” and adding: “He’s a total disgrace.”

[Politico]

Trump demands to meet whistleblower, warns of ‘big consequences’

President Trump on Sunday evening railed against the whistleblower and other individuals at the center of a growing scandal involving his phone call with Ukraine’s president, warning there could be “big consequences.”

“Like every American, I deserve to meet my accuser, especially when this accuser, the so-called “Whistleblower,” represented a perfect conversation with a foreign leader in a totally inaccurate and fraudulent way. Then [Rep. Adam] Schiff made up what I actually said by lying to Congress,” Trump said in a series of tweets.

“His lies were made in perhaps the most blatant and sinister manner ever seen in the great Chamber,” he continued, before adding that he wants Schiff, the chairman of the House Intelligence Committee, “questioned at the highest level for Fraud & Treason.”

“In addition,” he added, “I want to meet not only my accuser, who presented SECOND & THIRD HAND INFORMATION, but also the person who illegally gave this information, which was largely incorrect, to the ‘Whistleblower.’ Was this person SPYING on the U.S. President? Big Consequences!”

[The Hill]

Trump rages at ‘unlawful impeachment’ and vows to come after lawmakers in ’50 Trump type Districts’

President Donald Trump kept up his steady drumbeat of retweeting posts from the RNC and fans of his presidency on Sunday morning, using a video produced by the Republican Party to call the pending impeachment proceedings “unlawful.”

Linking to a video posted by GOP chairwoman Ronna McDaniel, where she wrote, “This is just the beginning of an all-out fight to defend our democracy & our president,” and targeted Democratic lawmakers in GOP districts, Trump added, “Will happen to all of those seeking unlawful impeachment in 50 Trump type Districts. We will win big!”

You can see the video below:

[Raw Story]

Trump Defends Kavanaugh After NYT Report: ‘Should Start Suing People’ or DOJ ‘Should Come to His Rescue’

President Donald Trump took to Twitter this morning defending Supreme Court Justice Brett Kavanaugh after a new report in The New York Times.

The Times reported on another allegation of sexual misconduct against Kavanaugh yesterday:

A classmate, Max Stier, saw Mr. Kavanaugh with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student. Mr. Stier, who runs a nonprofit organization in Washington, notified senators and the F.B.I. about this account, but the F.B.I. did not investigate and Mr. Stier has declined to discuss it publicly. (We corroborated the story with two officials who have communicated with Mr. Stier.)

Mr. Kavanaugh did not speak to us because we could not agree on terms for an interview. But he has denied Dr. Ford’s and Ms. Ramirez’s allegations, and declined to answer our questions about Mr. Stier’s account.

There’s now renewed outcry over Kavanaugh and calls for additional investigation, including from 2020 candidate Julián Castro:

President Trump defended Kavanaugh on Twitter this morning, saying people are lying about him to “scare him into turning Liberal,” even suggesting he “should start suing people for liable [sic], or the Justice Department should come to his rescue.”

Trump previously misspelled “libel”


Brett Kavanaugh should start suing people for liable, or the Justice Department should come to his rescue. The lies being told about him are unbelievable. False Accusations without recrimination. When does it stop? They are trying to influence his opinions. Can’t let that happen!

Donald J. Trump (@realDonaldTrump) September 15, 2019

[Mediaite]

Kellyanne Conway: It’s unconstitutional for Democrats to ’embarrass this president’ with impeachment

White House aide Kellyanne Conway on Sunday insisted that Democrats do not have a “constitutional basis” to embarrass President Donald Trump by conducting an impeachment inquiry.

Conway made the remarks while speaking to FOX News Sunday guest host Bill Hemmer.

“Complete nonsense,” she said when asked about the impeachment proceedings. “They need to get a messaging meeting and they need to read the constitution of the Democratic Party.”

“Americans, the Congress, they work for you,” Conway continued, talking over the FOX host. “And they’re wasting your money and your time trying to impeach a president where there are no high crimes and misdemeanors.”

She added: “Stop the nonsense of harassing and embarrassing this president and the people around him when you have no constitutional or legal basis to do so.”

Democrats have argued that they have a constitutional duty to conduct an impeachment inquiry.

[Raw Story]

Media

Trump Champions Faulty Legal Analysis From Fox News Commentator

Following the release of the Justice Department Inspector General’s report pertaining to the conduct of James Comey’s handling of government information, President Donald Trump has been relentlessly attacking the former FBI director. Despite the IG finding that Comey’s conduct violated FBI regulations but not any criminal statutes, Trump on Friday reiterated his belief that Comey should have been charged criminally, a conclusion which appears to be based on a fundamental misunderstanding of the relevant law.

“’They could have charged Comey with theft of government documents, 641 of the Criminal Code, because the IG found these were not his personal documents, these were government documents,’” Trump tweeted Friday, quoting from an article written by attorney and Fox News legal analyst Gregg Jarrett. “Comey’s claim that these were just his own personal recollections would not pass the laugh test, and the Inspector General just knocked that down.’”

While 18 U.S.C. 641 does make it a crime to “steal or knowingly convert” a government record “with intent to convert it to his use” or to convey it to another without authority, as Jarrett wrote, it is also only a part of any relevant analysis of the statute. Jarrett is a former defense attorney and adjunct law professor.

Attorney Bradley P. Moss, who specializes in national security, federal employment and security clearance law, responded by pointing out that the cited law is inapplicable to the circumstances at issue.

Moss is referring to the DOJ’s Resource Manual explanationdescribing the parameters of how 641 should and should not be applied, and reads as follows:

“[T]he [DOJ] Criminal Division believes that it is inappropriate to bring a prosecution under 18 U.S.C. § 641 when: (1) the subject of the theft is intangible property, i.e., government information owned by, or under the care, custody, or control of the United States; (2) the defendant obtained or used the property primarily for the purpose of disseminating it to the public; and (3) the property was not obtained as a result of wiretapping, (18 U.S.C. § 2511) interception of correspondence (18 U.S.C. §§ 1702, 1708), criminal entry, or criminal or civil trespass.”

According to Moss, Comey’s conduct clearly aligns with the exceptions laid out in the guidelines.

“Under this DOJ policy (which is not binding and could be ignored as a matter of discretion), the Comey Memoranda qualify as ‘intangible’ given that they exist solely as a memorialization of Comey’s conversations with the president,” Moss wrote in an email to Law&Crime explaining why the first prong of the guidelines in applicable to Comey’s conduct (the second and third prongs are self-evident).

Furthermore, the DOJ policy is specifically designed to protect whistle-blowers, stating that, “a government employee who, for the primary purpose of public exposure of the material, reveals a government document to which he or she gained access lawfully or by non-trespassory means would not be subject to criminal prosecution for the theft.”

Moss explained that while the criteria for defining a whistleblower is “malleable,” the section is essentially applicable to all persons seeking to divulge non-classified information for the purpose of informing the American public.

“The core premise is that Section 641 should not be used to prosecute unauthorized disclosures of information to the press that were done for transparency reasons,” Moss wrote, adding, “This policy in no way suggests prosecution is unwarranted under different statutory provisions if the information was classified, of course.”

[Law and Crime]

Trump says administration looking ‘seriously’ at ending birthright citizenship

President Trump on Wednesday said his administration is once again seriously considering an executive order to end birthright citizenship months after several lawmakers cast doubt on his ability to take such action.

“We’re looking at that very seriously,” Trump told reporters as he left the White House for Kentucky. “Birthright citizenship, where you have a baby on our land — walk over the border, have a baby, congratulations, the baby’s now a U.S. citizen.”

“We are looking at birthright citizenship very seriously,” he added. “It’s, frankly, ridiculous.”

The president proposed ending the practice that grants citizenship to those born in the United States during his 2016 presidential campaign. He revived the idea last year, saying he would sign an executive order to enact the change.

Numerous lawmakers, including several Republicans, quickly pushed back on the idea and argued Trump lacked the authority to make such a change using an executive order. They cited that birthright citizenship is a right enshrined under the 14th Amendment.

Trump responded to the criticism by saying birthright citizenship would be ended “one way or another.”

The president has sought various ways to crack down on illegal and legal immigration throughout his presidency.

His administration enacted and later reversed a “zero tolerance” policy that led to the separation of thousands of migrant families; Trump has sought changes to asylum laws to keep refugees in Mexico while they wait to be processed; and the White House last week rolled out a rule that would make it more difficult for some immigrants to obtain green cards.

The Trump administration announced earlier Wednesday it would unveil a new rule that would allow migrant families to be held indefinitely, ending a procedure known as the Flores Settlement Agreement that requires children to be held no longer than 20 days.

[The Hill]

Trump claimed Article 2 of the Constitution gives him the right to do ‘whatever I want as president,’ but that’s not true

President Donald Trump on Tuesday appeared to suggestArticle 2 of the Constitution provides him with unlimited authority as president, which is not accurate. 

Speaking to a crowd of young conservatives at a Turning Point USA conference in the nation’s capital, Trump on Tuesday said, “Then I have an Article 2, where I have the right to do whatever I want as president.”

Trump was bashing the former special counsel Robert Mueller’s investigation into Russian election interference when he made the erroneous assertion. He’s made similar comments in the past. In aJune interview with ABC News, Trump said, “Article 2 allows me to do whatever I want. Article 2 would have allowed me to fire [Mueller].”

Throughout the Mueller probe, the prospect of Trump firing the special counsel constantly hung over the investigation and created anxiety in Washington. Trump’s critics, including congressional Democrats, warned he’d be obstructing justice if he went that route. But the president’s allies, including his lawyer Rudy Giuliani, have made the case Trump had the authority to do so.

Article 2 of the Constitution includes the ill-defined “executive Power” of the president, which some in the legal world – including Attorney General William Barr – interpret quite loosely. In short, they believe it gives the chief executive broad authority. 

“Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy,” Barr wrote in a controversial memo criticizing the scope of the Mueller probe to the Justice Department before becoming attorney general. “He alone is the Executive branch. As such he is the sole repository of all Executive powers conferred by the Constitution.”

But Article 2 also discusses how a president can be removed from office “via impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

In other words, it has an explicit reference to at least one check on the president’s authority, which is perhaps the most extreme and rarely employed example.

At the moment, there’s a heated debate occurring among House Democrats on whether to launch an impeachment inquiry into the president. Mueller’s report outlined 11 possible instances of obstruction committed by Trump, a topic the House Judiciary Committee continues to investigate.

Mueller is set to testify before the committee on Wednesday. Ahead of his testimony, Trump at Tuesday’s event once again decried the Russia probe as a “witch hunt.”

[Business Insider]

Trump Says Only Trump Supporters Deserve Free Speech

President Trump held a confab at the White House Thursday to promote his Orwellian notion of “free speech” online. It confirmed yet again the president’s implacable hostility to basic liberal freedoms.

Trump has repeatedly accused Facebook, Google, and Twitter of carrying out a secret agenda against him and his supporters, by hiding the president’s tweets and covertly banning his supporters. Trump presented his position as a defense of free speech against some secretive form of censorship, and warned, “I’m directing my administration to explore all regulatory and legislative solutions to protect free speech and the free speech rights of all Americans.”

The simplest and clearest notion of free speech, as most scholars and courts have understood the concept, is that it doesn’t matter if Trump’s charges are true. The government has no business interfering with the expression of ideas by individuals or companies. Some media platforms use partisan or ideological standards to screen their speech (Fox News), while others have relatively neutral standards (Facebook), and others have no content standards at all (public spaces where people hold political demonstrations). By this logic, social media companies can screen out anybody they want, and if some political faction doesn’t like it, they can leave and form their own social media channels.

On the other hand, one might argue that Twitter, Facebook, and Google have attained some monopolistic power that negates this argument. If there’s no realistic way to challenge their reach or to create viable competitors, then the “marketplace of ideas” might not apply. This would be a valid argument for rooting out whether social media companies are engaged in some form of covert bias.

To be clear, Trump has produced no evidence whatsoever for this charge. I am merely describing a hypothetical argument that might support his position if his rather wild accusations were borne out.

But it turns out Trump cannot even defend this position, either. At the very same forum, he dismissed the free speech rights of independent media. “To me free speech is not when you see something good and then you purposely write bad,” he insisted. “To me that’s very dangerous speech, and you become angry at it. But that’s not free speech.”

This is one of those statements that would be shocking if made by any normal president, but is almost banal with Trump. He barely disguises his admiration for dictators and their freedom to murder journalists who displease them. While his own powers of suppression are far weaker, Trump is happy to use government authority to punish independent media (like CNN and the Washington Post, whose owners he has punished with unfavorable regulatory actions) and even individuals. (Trump has boasted that he personally enforced the NFL blacklist of Colin Kaepernick for the offense of kneeling during the national anthem.)

Trump’s invocation of “free speech” is consistent: His entire goal is to promote supportive views and suppress hostile ones. And the willingness of virtually the entire conservative movement to support or tolerate his cynical conscription of free speech to intimidate the media reveals how little they, too, care about freedom.

[New York Magazine]

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