The House impeachment inquiry has focused on the July 25 telephone call between President Donald Trump and Ukrainian President Volodymyr Zelenskiy. Concerns about that call were raised by an unnamed member of the intelligence community through a so-called “whistleblower complaint.
Now, concerns are being raised about whether the complaint, which is not based on first-hand knowledge, should have been considered at all. What’s going on?
Under federal law, a member of the intelligence community can file a whistleblower complaint with the Intelligence Community Inspector General with respect to an “urgent concern” relating to an intelligence activity under the authority of the director of national intelligence. If the ICIG deems the complaint credible, he reports it to the director of national intelligence, who in turn informs the Senate and House intelligence committees.
At the time of the Trump-Zelenskiy call, the ICIG’s policy unequivocally required that, to be deemed credible, a complaint must be based on first-hand knowledge:
In order to find an urgent concern “credible,” the ICIG must be in possession of reliable, first-hand information. The ICIG 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 ICIG.) 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 second-hand or unsubstantiated assertions, ICIG will not be able to process the complaint or information for submission as an ICWPA
This whistleblower complaint, however, is based entirely on second- and even third-hand information. Although the whistleblower says that he learned about “most” of the events from other people and sources — suggesting that at least some of his knowledge comes from his own observations — every specific event he describes was revealed to him by second-hand sources or from press reports about what other people said. Not once does he identify any information learned first-hand.
On its face, therefore, this complaint was inconsistent with the ICIG’s policy and, therefore, could not be deemed credible and reported to the director of national intelligence. But it was.
On Sept. 30, ICIG Michael Atkinson issued a news release acknowledging that, under the policy existing when he received this complaint, he could not have deemed it credible and reported it to the director of national intelligence. Instead, he admitted, he processed the complaint under a policy allowing second-hand information — a policy that he did not establish until after he received that complaint.
According to his news release, Atkinson simply accepted at face value the whistleblower’s assertion that he had first-hand information of at least some of the events alleged, even though the report itself provides no such information.
Now, under pressure, Atkinson is trying to spin his way out of this controversy. He claims, for example, that the original policy’s language “could be read – incorrectly – as suggesting that whistleblowers must possess first-hand information in order to file an urgent concern complaint with the congressional intelligence committees.” That claim is simply false.
The policy said that the ICIG — that is, Atkinson himself — could not deem a complaint credible based on second-hand information. It did not prevent a whistleblower from filing such a complaint or prevent Atkinson from using it as the basis for an investigation that might reveal first-hand sources.
Pivoting, Atkinson then claims that, no matter what the policy has said, it has actually always been the policy, at least as long as he’s been the ICIG, to accept complaints even if they lack first-hand information. And besides, Atkinson continues, this whistleblower checked a box on a form filed with the complaint saying that he did have first-hand information.
So what is really going on here?
First, Atkinson has admitted that he never reviewed the White House memorandum describing the content of the Trump-Zelensky call before concluding that the complaint about that call was “credible.”It appears that he substituted a checked box representing an unsupported assertion of first-hand knowledge for the actual substance and content of the complaint itself.
Second, either Atkinson had the wrong policy all along, which he only decided to change in response to this complaint, or he had the right policy all along, which he ignored for this whistleblower and changed only after explosive congressional and media attention. Neither of these is acceptable.
We may never know whether the whistleblower complaint about the Trump-Zelensky is truly credible. But, so far at least, Atkinson’s shifting explanations for his handling of that complaint are not.
This piece originally appeared in Real Clear Politics on 10/4/19