From Donald Trump on down, prominent Republicans used part of their weekend to falsely accuse Trump’s hand-picked intelligence community inspector general (IC IG) of secretly changing the requirements for intelligence workers to submit whistleblower tips as part of a “deep state” plot to clear the way for the Aug. 12 complaint about Trump’s phone call to the president of Ukraine.
The smoking gun in the putative conspiracy is an obscure government form, IC IG ICWSP Form 401, also known as the Disclosure of Urgent Concern Form. The document is put out by the IC IG for intelligence workers who need to file urgent complaints that trigger special treatment under the Intelligence Community Whistleblower Protection Act.
According to the GOP and an army of conservative commentators, the old version of the form prohibited workers from submitting urgent complaints based on secondhand information; only misconduct witnessed personally could be reported. That changed in early August, the false claim goes, when ICIG Michael Atkinson snuck through a hasty revision to the complaint form that reversed longstanding policy.
“Whistleblowers were required to provide direct, first-hand knowledge of allegations,” reads a Saturday tweet by House Minority Leader Kevin McCarthy. “But just days before the Ukraine whistleblower came forward, the IC secretly removed that requirement from the complaint form.”
“Records show that the intelligence community quietly revised the formal whistleblower complaint form in August 2019,” Rudy Giuliani tweeted on Sunday. “Eliminating the requirement to have direct, first-hand knowledge of perceived wrongdoing. Coincidence?”
“That was on the form literally until apparently very recently,” said another Trump lawyer, Jay Sekulow, in an appearance on Hannity. “Months ago: No firsthand information, no report.”
“WOW, they got caught,” tweeted Trump. “End the Witch Hunt now!”
The Atkinson smear comes amid a broad GOP campaign seemingly calculated to discredit the whistleblower report as unreliable, partisan hearsay, despite it having already been corroborated by an IC IG review and confirmed by the White House’s own transcript of Trump’s call with Ukraine President Volodymyr Zelensky. It began late Friday with a story from the conservative website The Federalist headlined “Intel Community Secretly Gutted Requirement Of First-Hand Whistleblower Knowledge.” The article claimed “the intelligence community secretly revised the formal whistleblower complaint form in August 2019 to eliminate the requirement of direct, first-hand knowledge of wrongdoing.”
“It seems like they are jumping to a lot of conclusions based on a fundamental misunderstanding of the law, the regulatory framework, and the language on one form,” said Julian Sanchez, a senior fellow at the libertarian Cato Institute.
The kernel of fact near the center of the conspiracy theory is that there is, indeed, a new version of Form 401 dated August 2019.
A question on the form explicitly anticipates tips based on secondhand information, and asks the whistleblower to check a box: “I have direct and personal knowledge,” or, “I heard about it from others.” The Federalist used a screenshot of that field to illustrate its story.
What the article didn’t mention or screenshot is a nearly identical field gracing Form 401 since at least May 2018, making it impossible that it was added as an easement for Trump’s whistleblower. The major difference in the fields is that the old form includes three options instead of two, subdividing secondhand sources into outside source and “other employees.”
There’s a reason the form has allowed secondhand reports all along. The requirement for firsthand whistleblowing only is completely made up.
“There’s never been a requirement that a whistleblower have firsthand knowledge of what they’re reporting,” said Irvin McCullough, an investigator at the nonprofit Government Accountability Project (and the son of a former IC IG). “They need to have a reasonable belief. The firsthand information is usually gathered by the inspector general, as I believe did occur here.”
When the IC IG receives an urgent report, it has 14 days to conduct a preliminary review under the law. If that investigation produces enough direct evidence, the IC IG can rule it “credible,” which triggers the legal requirement to forward the report to the director of central intelligence (DCI), and from there to Congress.
The Federalist and supporters of the Atkinson smear also point to a two-page information sheet distributed as part of the May 2018 version of the form but not the August 2019 version. It’s unclear when it was dropped, but a paragraph in that now-excised preamble was headed, “First-Hand Information Required,” seemingly contradicting the form itself. “In order to find an ‘urgent’ concern credible, the IC IG must be in possession of reliable, first-hand information,” the text read in part. “The IC IG cannot transmit information via the ICWPA based on an employee’s second-hand knowledge of wrongdoing.”
Though the text is confusingly drafted—which may be why the entire preamble was canned—a careful reading shows it’s not erecting a new hurdle for filing a whistleblower complaint, but rather describing the type of evidence the IC IG has to gather to judge the complaint “credible” at the end of its 14-day investigation.
“It’s an explanation of the IG’s standard for assessing credibility,” said Sanchez in an interview with The Daily Beast. “The IG isn’t going to forward it to the DNI if it can’t corroborate secondhand or indirect information. The whistleblower’s job is not to investigate. That is the job of the IG.”
The IC IG responded to the hoax story with a statement late Monday afternoon, pointing out that, not only was there no change in requirements, but Trump’s whistleblower used the old version of the form.
“The whistleblower submitted the appropriate Disclosure of Urgent Concern form that was in effect as of August 12, 2019, and had been used by the IC IG since May 24, 2018,” the statement noted. “The whistleblower stated on the form that he or she possessed both first-hand and other information. The IC IG reviewed the information provided as well as other information gathered and determined that the complaint was both urgent and that it appeared credible.
In other words, Trump’s whistleblower didn’t go through some shady “deep state” backdoor. He or she followed the process, and government investigators found the firsthand evidence themselves.
“Complainant was not a direct witness to President’s telephone call with the Ukrainian President on July 25, 2019,” the IC IG wrote on Aug. 26. “Other information obtained during the preliminary review, however, supports the Complainant’s allegation that, among other things, during the call the President ‘sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid.’”