See Update below.
CLAIM: President Donald Trump lied when he said that the intelligence community changed the whistleblower rules to allow people to submit second-hand information.
VERDICT: False. Even if the rules did not change, the online form did change to remove a first-hand information requirement.
Last week, The Federalist pointed out an odd coincidence: the intelligence community website for whistleblowers uploaded a new version of its form for complaints, which had been updated in August 2019 — just as the so-called “whistleblower” was talking to Rep. Adam Schiff (D-CA) and the House Intelligence Committee.
The new form omits a warning that first-hand information is required for a complaint to be processed as an “urgent concern.”
The Washington Post‘s fact-checker, Glenn Kessler, attacked The Federalist and Trump — and claimed that the story was “emblematic of how inaccurate news flows into the president’s Twitter account.” He gave “four Pinnochios” to Trump’s claim that the whistleblower rules had been changed just before the complaint had been submitted.
But Kessler had to admit that The Federalist was right about its central claim: namely, the warning that only first-hand information would be accepted had been eliminated from the new form.
That did not mean the “rules” had changed; indeed, Kessler argued, they had not been updated since 2016. But Kessler could not explain — and did not try to explain — why the warning about first-hand information had been dropped from the online submission form.
Instead, Kessler made three arguments. First, he argued, the law itself does not require first-hand information. (He admits that he relied, in part, on the son of the attorney for the so-called “whistleblower” in obtaining that opinion.) Second, he noted, both versions of the online form allowed whistleblowers to check a box indicating that they had second-hand information. And third, the “whistleblower” in this case actually used the old form, not the new one. (The “whistleblower” actually checked both boxes, claiming to have both first-hand and second-hand information.)
To summarize thus far: The Federalist was right that the form was changed to remove a warning that required first-hand information. Trump thought — as others did — that meant the “rules” had changed, but they probably had not. And it may not have mattered anyway, because the “whistleblower” used the old form to submit the complaint.
But if the rules had not been changed, why was there ever a warning against relying on second-hand information?
The Office of the Inspector General of the Intelligence Community (ICIG) issued a response to the controversy, in which it claimed that the statute does not require first-hand information, and said the old form “could be read – incorrectly – as suggesting that whistleblowers must possess first-hand information.” It added that the so-called “whistleblower” had “direct knowledge of certain alleged conduct” that he or she described in the complaint.
But it is not clear, from the text of the complaint itself, what first-hand knowledge the so-called “whistleblower” actually had. The “whistleblower” admits that he or she “was not a direct witness to most of the events described,” but never explains what he or she actually witnessed directly. The complaint claims to have “receive[d]” a “readout” of the Ukraine call, but it was not the “readout” or “transcript” that the White House later posted, to much fanfare. Rather, that “readout” was a public document originally published in Russian on the Ukrainian president’s website.
The complaint also cites media reports, but these hardly qualify as first-hand information. Rather, they seem to have been invoked to express concern about the administration’s foreign policy. They reflect the sort of “differences of opinions concerning public policy matters” that the statute specifically excludes from whistleblower complaints.
As for the “incorrect” form, the ICIG explains that it was updated after a “newly hired Director for the Center for Protected Disclosures” arrived in June 2019. It adds that the form was replaced “[i]n the process of reviewing and clarifying those forms, and in response to recent press inquiries regarding the instant whistleblower complaint” (emphasis added).
It admits that the form was changed at least partly to fit the facts of this “whistleblower” case.
The Federalist, and the president, could be forgiven for concluding — as any reasonable person would — the rules had changed.
At the very least, the ICIG should explain why it “incorrectly” required first-hand information until now.
Update: We have removed the phrase “apparently to justify the complaint against Trump” because the “whistleblower” used the old version of the form. However, it remains true that the “whistleblower” erroneously claimed to have first-hand information, a claim later dropped during the House Intelligence Committee impeachment inquiry.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.