This article, featuring our National Security Analyst Irvin McCullough, was originally published here.
Trump’s False Claim That The Rules For Whistleblowers Were Recently Changed
It also is emblematic of how inaccurate news flows into the president’s Twitter account. A speculative article on a conservative website provided fodder for talking points by presidential allies on television, which in turn caught the attention of the president. Then the president stretched the claim even further into a Four-Pinocchio statement.
Let’s explore.
The Facts
This all started with tweets by Stephen McIntyre, a mining consultant who runs Climate Audit, a blog skeptical of climate change data. “Here is something seriously strange,” he tweeted. “The Disclosure of Urgent Concern Form located earlier today at DNI is only two days old according to its pdf properties.” Moreover, he noted, the form had been revised in August — which just happens to be the month when the whistleblower submitted allegations about Trump.
An intelligence officer, as a whistleblower, can file an “urgent concern” report of potential wrongdoing to trigger statutory procedures that require expedited reporting of misconduct to congressional intelligence committees. In his letter outlining the complaint, the whistleblower cited 50 U.S.C. Section 3033(k) (5)(A), which sets out the process that allows someone in the intelligence community to trigger an “urgent concern.”
The “urgent concern” form apparently had not been online until recently. But the Federalist, an online publication, obtained an earlier form, from May 2018, which had a section titled: “FIRST-HAND INFORMATION REQUIRED.”
This section of the form ended: “If you think that wrongdoing took place, but can provide nothing more than secondhand or unsubstantiated assertions, [the intelligence community inspector general] will not be able to process the complaint or information for submission as an ICWPA,” referring to the Intelligence Community Whistleblower Protection Act of 1998. This warning language is not in the new online form.
The Federalist article asserted that “between May 2018 and August 2019, the intelligence community secretly eliminated a requirement that whistleblowers provide direct, firsthand knowledge of alleged wrongdoings.” (The Federalist refuses to disclose its funding, but its articles often defend Trump against reports in what it calls the “corporate media.”)
Trump seized on this claim and tweeted that this meant that long-standing whistleblower rules were changed just in recent weeks.
But forms don’t change rules; the rules are set by laws and policies. In this case, the guiding document is Intelligence Community Directive (ICD) 120, which was issued in 2014 and last updated in 2016. The directive implements Presidential Policy Directive (PPD) 19, “Protecting Whistleblowers with Access to Classified Information,” signed by President Barack Obama to provide the first executive-branch protections for intelligence community whistleblowers.
PPD 19 was issued in response to WikiLeaks’ release of classified State Department cables. The urgency to issue ICD 120, the implementing instructions, was in response to the massive leak of national security information by Edward Snowden, who went to media on the belief he was not protected by whistleblower laws.
ICD 120 sets a “reasonable belief” standard for reporting wrongdoing through protected disclosures “that the employee reasonably believes evidences a violation of any law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
A “reasonable belief” covers information obtained secondhand, according to Irvin McCullough, a national security analyst at the nonprofit Government Accountability Project, and other experts consulted by The Fact Checker. “As a whistleblower, you can always submit a complaint if you have a reasonable belief, even if it is secondhand or even third-hand,” McCullough said.
(Note: McCullough’s father is Charles McCullough, the inspector general for the intelligence community from 2010 to 2017, when ICD 120 was issued, and now an attorney for the unnamed whistleblower. He said he and his father “built a firewall between us on this case, in part because his representation of the whistleblower wandered into my policy expertise.”)
Notwithstanding the section on firsthand information highlighted by the Federalist, the May 2018 form includes a box that can be checked about the sources of information: a) “I have personal and/or direct knowledge of events or records involved,” b) “Other employees have told me about events or records involved” or c) “Other source(s) (please explain).”
The new form has virtually the same options: a) “I have direct and personal knowledge” and b) “I heard about it from others.”
The filing of the form is only the first part of the process. The inspector general has 14 days to determine how credible a claim is before deciding whether to proceed, including by interviewing witnesses and obtaining documents.
In the case of the Ukraine whistleblower, he wrote that he “was not a direct witness to most of the events” recounted in the complaint. But Michael Atkinson, the current inspector general for intelligence, said that even without access to the memo of the July 25 phone call between Trump and Ukrainian President Volodymyr Zelensky, Atkinson’s preliminary review found that the complaint “appears credible,” including that Trump sought to pressure the Ukrainian president to help with his reelection bid.
On its face, it makes little sense for an IG to refuse secondhand information at the initial stage because an IG, like a prosecutor or a journalist, is looking for leads, not merely for admissible evidence. Both versions of the form allowed for the submission of secondhand information, as provided in the guiding policy documents. The older form merely had a stronger warning that the tip would need to be verified by the IG before it could be deemed credible, perhaps to discourage complaints from people soon to be terminated or disciplined.
In a lengthy statement rebutting the Federalist’s reporting, the IG’s office said that the Ukraine whistleblower relied on the 2018 form, not the new online form:
Although the form requests information about whether the Complainant possesses first-hand knowledge about the matter about which he or she is lodging the complaint, there is no such requirement set forth in the statute. In fact, by law the Complainant – or any individual in the Intelligence Community who wants to report information with respect to an urgent concern to the congressional intelligence committees – need not possess first-hand information in order to file a complaint or information with respect to an urgent concern. The ICIG cannot add conditions to the filing of an urgent concern that do not exist in law.
The statement also provided this detail:
The Complainant on the form he or she submitted on August 12, 2019 in fact checked two relevant boxes: The first box stated that, “I have personal and/or direct knowledge of events or records involved”; and the second box stated that, “Other employees have told me about events or records involved.”
The Pinocchio Test
The original report in the Federalist focused on a change in the form, suggesting it was somehow related to the recent whistleblower case. There is no evidence that is correct.
In any case, the IG’s process for handling whistleblower allegations is determined not by a form but by the law and related policy documents. The key document, ICD 120, has been virtually unchanged since 2014. Contrary to the speculation, the whistleblower used the 2018 form, not the new online form. The IG then investigated and found that his allegations were credible and that Congress should be notified.
The president seized on reports on the form to falsely claim the rules for whistleblowers were changed just before the whistleblower’s report was submitted in August. That’s false and worthy of Four Pinocchios.