UH OH: Benjamin Wittes POKES HOLES in Ronan Farrow’s latest on the Cohen ‘whistleblower’ (who’s not really a whistleblower)

Ronan Farrow had a big scoop out last night where he gave more details on who leaked Michael Cohen’s financial information to the press. In short, the leaker is in “law enforcement” and he or she was concerned that certain “suspicious-activity reports” on Cohen’s transactions had disappeared. Or, at least, the leaker said they disappeared.

For this, the leaker is being called a “whistleblower”:

The whistleblower who leaked Michael Cohen’s financial records spoke to @RonanFarrow as to why: records of other, bigger transactions appeared to be missing from a government database and he feared the information was being withheld from law enforcement.https://t.co/PLg1MubP2T

— Nathan McDermott (@natemcdermott) May 16, 2018

But that’s not how a “whistleblower” actually works. If this person worked in law enforcement, there were many legal channels for he or she to bring those concerns to and it was not done:

Not a “whistleblower.” Whistleblowers follow clear statutory guidelines for reporting potential wrongdoing to OSC. This hack also illegally leaked the wrong people’s records. Not to proper officials, but to a hooker’s lawyer/PR rep. https://t.co/t6SrQ3k8z4

— Sean Davis (@seanmdav) May 17, 2018

If you think Sean Davis is too partisan, how about attorney Mark Zaid or specializes in these matters?

I wouldn’t be ethically permitted to confirm one way or the other, but I can say generally with respect to this action: ugh. https://t.co/H2UmAoeSZO

— Mark S. Zaid (@MarkSZaidEsq) May 17, 2018

Except there’s no reason to respectfully believe there wasn’t appropriate reporting processes available. Obviously they might have a different subjective view but certainly the Special Counsel would have been a much better venue to contact.

— Mark S. Zaid (@MarkSZaidEsq) May 17, 2018

As Asha said in CNN segment, and what I always advocate, leaking – especially when illegal – should be the last fallback option. Ethically lawyers cannot advise it as an option but realistically it is rarely – if ever – the only alternative choice.

— Mark S. Zaid (@MarkSZaidEsq) May 17, 2018

Business Insider Josh Barro brought up similar concerns:

Anyway, we’ve talked a lot about the importance of defending the rule of law under Trump. What Mueller and SDNY are doing is the rule of law. Some law enforcement official leaking Cohen’s confidential bank records on his own initiative is not the rule of law.

— Josh Barro (@jbarro) May 16, 2018

So what we have here are people from everywhere on the spectrum saying this leaker has problems. But it gets worse for whomever did this…

Lawfare’s Benjamin Wittes, who’s a good friend of James Comey, is not quite sure that the leaker even saw anything improper in the first place:

So if Ben Wittes is right and the bank documents did not disappear from the FBI, the leak of them by Ronan Farrow’s source is puely felonious and something for which there is no defense. This goes to elemental financial privacy and is something that should concern everyone.

— John Podhoretz (@jpodhoretz) May 17, 2018

Wittes tweeted:

I’ve been thinking about this New Yorker story on SARs missing from a FINCEN database and I don’t want to rain on anyone’s parade here, but color me at least a little bit skeptical. Here’s why. /1/

— Benjamin Wittes (@benjaminwittes) May 17, 2018

Assume for a moment that some records of Cohen’s transactions are, in fact, missing. That does not mean that the transactions themselves have disappeared, only that the Treasury Department’s record of the back’s reports of the transactions are gone from this database. /2/

— Benjamin Wittes (@benjaminwittes) May 17, 2018

So when Bob Mueller or the SDNY subpoenas the bank—as they surely have done already—for the records of all of Cohen’s transactions, those transaction records will still be there—and will be turned over. Moreover, the bank surely still has records of the SARs themselves. /3/

— Benjamin Wittes (@benjaminwittes) May 17, 2018

So I doubt very much that there will be material data loss to Mueller or the SDNY in any pending investigation even if there has been, in fact, some data loss within FINCEN. /4/

— Benjamin Wittes (@benjaminwittes) May 17, 2018

Moreover, were such a data loss to be discovered—as I’m pretty sure it would be if such records were under scrutiny—and the destruction were intentional and malicious, that would likely be traceable. That’s the sort of the thing prosecutors will find very interesting. /5/

— Benjamin Wittes (@benjaminwittes) May 17, 2018

Finally, internal destruction of investigative records at a law enforcement agency like FINCEN to protect an investigative subject is rare. It’ll take more than an anonymous source explaining why he leaked material to make me believe that’s what happened here. /6/

— Benjamin Wittes (@benjaminwittes) May 17, 2018

Not saying it didn’t happen. Just saying something about this isn’t ringing right to me. /7/

— Benjamin Wittes (@benjaminwittes) May 17, 2018

Oh, man. This leaker is toast.

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