The “Whistleblower Complaint” isn’t a whistleblower complaint, it’s a closing argument

The “Whistleblower Complaint” isn’t a whistleblower complaint, it’s a closing argument

When the so-called Whistleblower Complaint was released this morning, my first impression was that this was a very professionally-done document, likely crafted by a lawyer.

It looks like a lawyer letter. It’s very legalistic in many parts, cites to statutes and executive orders, and is heavily footnoted. It attempts to bring together evidence from disparate sources, including public news reports. It is, in every sense, a closing argument or brief in support of a position by someone who did not actually participate in the events about which he or she is writing.

The document does not at all read like we would expect a whistleblower complaint to read — alerting the appropriate authority to facts the whistleblower has learned and leaving the legal conclusions to those authorities.

The NY Times reports that the whistleblower is a CIA officer, likely an analyst, assigned at one time to White House duty, though the timing of that assignment is unclear. That would make sense considering the analytical nature of the document, and particularly the opening two sentences and later paragraph regarding classification:

I am reporting an “urgent concern” in accordance with the procedures outlined in 50 U.S.C. §3033(k)(5)(A). This letter is UNCLASSIFIED when separated from the attachment.

* * *

To the best of my knowledge, the entirety of this statement is unclassified when separated from the classified enclosure. I have endeavored to apply the classification standards outlined in Executive Order (EO) 13526 and to separate out information that I know or have reason to believe is classified for national security purposes. 1

• If a classification marking is applied retroactively, I believe it is incumbent upon the
classifying authority to explain why such a marking was applied, and to which specific
information it pertains.

* * *

[Fn 1] 1 Apart from the information in the Enclosure, it is my belief that none of the information contained herein meets the definition of”classified information” outlined in EO 13 526, Part 1, Section 1. 1. There is ample open-source information about the efforts I describe below, including statements by the President and Mr. Giuliani. In addition, based on my personal observations, there is discretion with respect to the classification of private comments by or instructions from the President, including his communications with foreign leaders; information that is not related to U.S. foreign policy or national security-such as the information contained in this document, when separated from the Enclosure-is generally treated as unclassified. I also believe that applying a classification marking to this information would violate EO 13526, Part 1, Section 1.7, which states: “In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to: (1) conceal violations of law, inefficiency, or administrative error; [or] (2) prevent embarrassment to a person, organization, or agency.”

Who talks/writes like this? Lawyers and analysts steeped in national security law, and concerned about the nuances of classifications. In this case, the whistleblower likely was well-versed in national security law AND had legal help crafting the complaint.

Why go to the trouble of such a detailed explanation of what is/is not classified in the document? Why not leave that classification issue to the appropriate authorities?

Perhaps the whistleblower wanted the document to be leaked and wanted to make sure the leakers knew only to leak the letter, not the attachment:

This letter is UNCLASSIFIED when separated from the attachment.

* * *

To the best of my knowledge, the entirety of this statement is unclassified when separated from the classified enclosure.

In the coming days, we’re likely to find out more about the whistleblower. An exclusive interview with the Washington Post, a la Christine Blasey Ford, seems likely with or without a reveal of identity.

It’s too soon to say conclusively this was a CIA analyst or other intelligence community member, but if that turns out to be the case, then the implications are frightening. It will show that the worst conspiracy theories about the “deep state” were not conspiracy theories at all.

If CIA or other intelligence operatives are using their access to sensitive information in order to interfere in our political process, then that is a lot more frightening than a President raising the widely-reported corruption of his political opponent with the president of the country where the alleged corruption took place.

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