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.
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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. [...] 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.
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“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.”
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The requirement for firsthand whistleblowing only is completely made up.
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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.”
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“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."
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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.
On September 27, The Federalist's Sean Davis falsely claimed that until recently, intelligence community whistleblowers were required to have “first-hand knowledge” of wrongdoing in order to have a complaint investigated. This claim, which has since been debunked as untrue, is based on an obscure government form that conservatives are claiming was recently changed when Intelligence Community Inspector General Michael Atkinson reversed policy to allow secondhand information as the basis of a complaint. In fact, the statute that governs the process for intelligence community members to file whistleblower complaints has never included a firsthand knowledge requirement.
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The debunked claim has been pushed on Fox News at least five times since September 27.
Media Matters
And, look who's pushing it:
Nice response to Trump's tweet:
The conspiracy theory was promoted by the president, Republican members of Congress, and a slew of right-wing media personalities. On Monday, Fox News continued to push the claim as a primary talking point.
On the September 27 edition of Hannity, Trump attorney Jay Sekulow claimed that “the form that so-called whistleblowers fill out” used to require firsthand information and “that was on the form literally until apparently very recently.”
Of course, it's Hannity and the
Fox & Friends people who are pushing this angle heavily. And those are the
Fox shows Trumpalos tune in to.
In his [
Federalist] article, Davis wrote that “between May 2018 and August 2019, the intelligence community secretly eliminated a requirement that whistleblowers provide direct, first-hand knowledge of alleged wrongdoings” and that said action “raises questions about the intelligence community’s behavior” surrounding the complaint. Davis attempted to support his claim by citing forms available to the intelligence community to assist potential whistleblowers in filing complaints.
According to Davis, a form available in May contains language suggesting complainants must have firsthand knowledge of wrongdoing to file an “urgent concern” complaint -- the type of complaint filed by the Ukraine whistleblower -- but that the form was revised at some point to remove that language. (But according to a senior fellow at the libertarian Cato Institute, the likely explanation for the change was that the information in the previous form was inaccurate on the issue of firsthand knowledge and was therefore updated.)
To be clear, Davis’ claim that there was a firsthand knowledge requirement for filing a complaint is false. It simply does not exist in the statute that lays out the requirements of a successful “urgent concern” report. The controlling statute is
50 U.S. Code § 3033(k)(5)(G).
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It is also important to keep in mind that despite numerous attempts by right-wing media to discredit the complaint because it is “hearsay,” that argument has been largely rendered moot as the central allegation of complaint -- that Trump asked Ukraine to investigate Biden -- has been corroborated. The fact that the “transcript” of the call released by the White House lines up with the central allegation of the complaint makes it immaterial how exactly the whistleblower learned of Trump’s actions, because the whistleblower accurately described them. The credibility of the complaint, which also alleged that the Trump administration moved the Ukraine call transcript into a highly classified computer system, is also bolstered by the White House’s acknowledgement that it did take that action.
Media Matters
...but hey, do what you want...you will anyway.
UPDATE: He's still at it.
