McCarthy, Nunes, Jordan Demand Answers on Whistleblower Complaint Form Changes

McCarthy and Nunes NBCNews

Three top Republican lawmakers are asking the intelligence community inspector general (ICIG) why a whistleblower complaint against President Trump using an “urgent concern” process was determined to be credible, despite the lack of required first-hand knowledge of wrongdoing.

In a letter sent on Monday, Minority Whip Kevin McCarthy (R-CA), Devin Nunes (R-CA), and Jim Jordan (R-OH) asked Inspector General Michael Atkinson to explain why he found the complaint credible given whistleblower guidelines that a whistleblower have first-hand knowledge of alleged wrongdoing:

According to your August 26, 2019 letter to Acting Director of National Intelligence Joseph Maguire, you determined that the whistleblower complaint filed with your office on August 12, 2019 using the ‘urgent concern’ process established by the Intelligence Community Whistleblower Protection Act (ICWPA) appeared credible.

Every allegation contain in this complaint, which was previously released in redacted form on September 25, 2019, is based on press reporting, speculation, or the complainant’s second-hand knowledge of the alleged misconduct.

They continued:

At no point in your letter, or in any following information provided to the House Intelligence Community related to this issue, did you indicate that your office found any of the whistleblower’s allegations to be based on first-hand knowledge during the preliminary review you undertook to determine whether the complaint appeared credible and met the statutory definition of urgent concern.

This demonstrated lack of first-hand knowledge is why we are sending this letter.

They pointed out that a May 24, 2018, complaint forms clearly stated:

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 [Intelligence Community Whistleblower Protection Act] based on an employee’s second-hand knowledge of wrongdoing.

It continued:

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 legal basis to meet the statutory requirements of the ICWPA. If you think that 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.

They noted that the current urgent disclosure form on the Office of the Director of National Intelligence website has been revised in August 2019 — the same month that the intelligence official submitted the whistleblower complaint. There is no specific revision date. (The whistleblower complaint was sent on August 12, 2019).

In addition, the lawmakers noted that the new form’s internal document properties showed that it was created on September 24, 2019.

They submitted detailed questions to Atkinson related to how many times the complaint form had been revised since May 24, 2018, by whom, and why.

The Office of the Inspector General issued a statement later on Monday that denied that the inspector general broke any law.

It also said the inspector general “followed its routine practice” and provided the whistleblower with “information, including ‘Background Information on the ICWPA Process'” that included the “language” that the inspector general “must be in possession of reliable, first-hand information.”

The statement said the form the whistleblower used on August 12, 2019, is the same form the ICIG “has had in place since May 24, 2018” — five days before the current IG, Atkinson, came on duty.

The ICIG’s statement also said that language requesting first-hand knowledge is not a law.

“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,” it said, adding:

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 statement also revealed that the whistleblower checked two boxes on the form that stated, “I have personal and/or direct knowledge of events or records involved” and “Other employees have told me about events or records involved.”

The IG determined the whistleblower had “official and authorized access” to the “information and sources” referenced in the complaint, and “subject matter expertise” related to “much of the material information provided” in the complaint and classified appendix.

At the same time, the ICIG statement admitted that a new Center for Protected Disclosures that opened in 2018 “has been reviewing the forms provided to whistleblowers who wish to report information with respect to an urgent concern to the congressional intelligence committees.”

It said that due to recent press inquiries regarding the current whistleblower complaint, the ICIG understood that “certain language” in those forms, and informational materials accompanying the forms “could be read — incorrectly — as suggesting that whistleblowers must possess first-hand information in order to file an urgent concern complaint with congressional intelligence committees.

New forms have  been developed, and are now on the website, the ICIG statement said.

The Federalist’s Sean Davis, who first reported that the new forms did not have the language saying the ICIG must have possession of first-hand information, said the ICIG’s statement affirmed his reporting.

Davis wrote that under the law governing whistleblower complaints, the inspector general has “near-total authority to determine whether a complaint is credible or not,” leaving the ICIG broad discretion as to what type of evidence is required.

As he result, he said, the ICIG made internal changes to “its own policies and guidance regarding firsthand evidence.”

Davis also noted the ICIG’s admission that it changed its forms after the current complaint in question.

“The ICIG’s claim that it would have been incorrect to perceive a requirement for firsthand information is bizarre considering the previous version of the form clearly states in unambiguous language that firsthand evidence was required in order for ‘urgent concern’ whistleblower complaints to be deemed credible.”

McCarthy, Nunes, and Jordan are requesting answers to their questions by October 3.


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