ANALYSIS | President Donald Trump and his supporters have sought to undermine a whistleblower at the center of the impeachment inquiry in many ways, not least by saying the person had no firsthand knowledge of the alleged wrongdoing.
But the president’s argument is off base. And how it came to be part of the public debate illustrates how a reasonable-sounding talking point can be completely inaccurate. It also shows how, in the Trump era, facts are not only misstated or distorted but can harden after much retelling into fantastically conspiratorial tales that are believed in the nether regions of cyberspace.
Trump and his allies have contended that it is unfair and a departure from standard practice to accept the claims of someone who did not see the alleged offense. But Trump has gone further and has even suggested — falsely — that when the famous but anonymous whistleblower was disclosing profound concerns about Trump through official channels, the so-called deep state rewrote a supposed federal requirement that whistleblowers must have only firsthand information.
They rewrote it, the president hinted darkly, in order to facilitate the new charge against him.
“WHO CHANGED THE LONG STANDING WHISTLEBLOWER RULES JUST BEFORE SUBMITTAL OF THE FAKE WHISTLEBLOWER REPORT? DRAIN THE SWAMP!” Trump tweeted on Sept. 30.
Just this week, the president has repeatedly made the “second-hand” argument about the whistleblower, who filed a complaint on Aug. 12 alleging the president abused his office for political gain, including by asking the president of Ukraine in a July 25 call to probe Joseph R. Biden Jr., a leading Democratic candidate to run against Trump next year.
Trump’s supporters in Congress and on social media have only amplified his contentions on this score in recent days.
“The whistleblower said terrible things about the call,” Trump said at a White House event with the president of Finland on Oct. 2. “But I then found out he was second-hand and third-hand. In other words, he didn’t know what was on the call.”
Trump later told reporters: “The whistleblower never saw the conversation. He got his information I guess second or third hand. He wrote something that was total fiction.”
The president’s statement was misleading. The suggestion that whistleblowers should or must only disclose what they directly witness is incorrect, according to federal officials and independent experts.
Whistle only starts process
Whistleblowers frequently — in fact, some say, usually — make allegations based on hearsay. There is no requirement anywhere in the government that whistleblowers must have directly witnessed the wrongdoing they allege.
A whistleblower’s allegation is just that and nothing more, these observers say. That’s because, once inspectors general receive a complaint, they then must determine if it is credible enough to warrant further consideration — whether through an audit or a referral to criminal investigators or, in the case of a classified complaint from someone who works for a spy agency, a referral to the Intelligence Committees.
“It is understood that it is not always feasible for only people with firsthand information to be the ones reporting concerns,” said Bradley Moss, an attorney with extensive experience in whistleblower cases. “That’s why the complaint itself is only the first step in the process, not the last one.”
The inspector general must decide if a complaint is credible — as the intelligence community inspector general did in the case of the Trump allegation.
The IGs are “relying on their own fact-finding mission, and not just the word of one whistleblower,” said Irvin McCullough, an expert with the Government Accountability Project, a whistleblower advocacy group.
Whether in the intelligence agencies or elsewhere in the government, the standard is the same, McCullough and other experts say: Those who want to report what they perceive to be wrongdoing must merely have a “reasonable belief” that they are right about it.
Dwrena Allen, a spokeswoman for the Defense Department inspector general, said that standard is the one the Pentagon IG uses.
Michael Horowitz, the Justice Department inspector general who oversees an interagency council of inspectors general, declined through a spokeswoman to comment on the question.
The White House contended in Sept. 25 talking points that were inadvertently sent to congressional Democrats that the presidency itself is undermined when a “second hand account of a confidential conversation” triggers what administration officials say is a partisan probe.
In the days that followed, GOP lawmakers and other Trump supporters employed the same argument.
The whistleblower’s allegation “doesn’t come from a person with personal knowledge,” Sen. John Cornyn of Texas told reporters. “It’s like, ‘I heard these people say this, and now I’m reporting it.’ I think that is pretty bizarre.”
House Minority Leader Kevin McCarthy, R-Calif., told CBS News’ “60 Minutes” in an interview broadcast on Sept. 29 that the president did nothing wrong. McCarthy added, “The whistleblower wasn’t on the call.”
A Sept. 27 article in The Federalist, a conservative online magazine, provided material on this question that Trump supporters would deploy to defend the president — but that would further muddy public understanding of the issue.
The article cited guidance for intelligence-agency whistleblowers that was in effect from May 2018 to August 2019 that seemed to indicate those who suspect wrongdoing must be firsthand witnesses. The article added that the guidance was “secretly gutted” in August around the time of the whistleblower complaint — suggesting the two incidents were related.
Three days later, in an apparent reference to the Federalist article, Trump tweeted his question — really a statement — about whether the change to the document was done to help the Ukraine whistleblower file his or her complaint.
Michael Atkinson, the intelligence community inspector general, issued a statement the same day effectively dismissing the idea that the rules were loosened to allow the Ukraine complaint.
First, his office said in the statement, the document that some were saying required firsthand information was actually still in use at the time the Ukraine call whistleblower filed the explosive complaint on Aug. 12.
Hearsay is okay
And the document was misunderstood in other ways, according to Atkinson’s statement and interviews with other experts.
The paper was not a regulation but a document to help explain whistleblowing rules to government employees. It was never intended to dictate what whistleblowers are allowed to disclose but rather to explain to them the unremarkable fact that the claims that the IG is likeliest to consider credible are those based on firsthand observations.
Whistleblowers “need not possess first-hand information in order to file a complaint or information with respect to an urgent concern,” Atkinson’s statement said.
Regardless, it is the IG — whether in the intelligence agency or another government office — who still must decide which whistleblower allegations are credible and worthy of further investigation.
The whistleblower form, it turns out, does ask whether there is firsthand information behind the allegation. But having such information is not a minimum requirement.
In fact, the Ukraine whistleblower indicated on the form that he or she possessed both firsthand and secondary information.
Indeed, the overwhelming majority of tips that whistleblowers provide are based on hearsay, experts say.
“If we were to say that any whistleblowers or sources for any law enforcement investigation could not use second- or third-hand information, then we would be effectively canceling out 95 percent of law-enforcement investigations,” said McCullough of the Government Accountability Project.
Neither that fact nor lots of others have not gotten in the way of a solid-sounding story for the president’s defenders.