On Monday afternoon, the Intelligence Community Inspector General published a press release describing his office’s handing of whistleblower complaints, attempting to quell the firestorm created by untimely changes to a key whistleblower form that raised suspicions amongst the public and members of Congress.
Unfortunately, this firestorm does not appear to be dying down, and elements of the release only cast further doubts on how Atkinson and his team have handled this entire episode, and whether they are finally being forthright about the rationale and timing of the changes or trying to obfuscate their way through the crisis. The release clearly confirmed that the IG did in fact remove the “first-hand information” requirement from the form in August, as The Federalist first reported last week.
The release also attempted to leave the impression that the change was routine with its timing unrelated to the Ukraine complaint. It spent nearly an entire page of the three-page document describing an initiative to update forms that was apparently ongoing in the organization. Notably, multiple press outlets have used that characterization to minimize the issue, some even calling genuine concerns about the apparent subterfuge by the ICIG a “hoax story.”
Nobody has seriously argued that the ICIG wouldn’t be allowed (or even obligated) to begin an investigation regardless of the source of an allegation. The outrage is because the ICIG was caught with its hand in the cookie jar trying to protect the optics of a “credibility” determination that continues to draw more scrutiny as more time passes.
A lack of first-hand knowledge of an allegation should not disqualify it, but it reasonably drives questions about the overall credibility of a complaint. Which is what investigations are for.
The Investigation that Never Happened
As I noted previously, Atkinson promised during his confirmation hearings to conduct investigations in accordance with the basic quality standards promulgated by Council of the Inspectors General. However, in a shocking review of the recently declassified letter he transmitted to Acting Director of National Intelligence Joseph Maguire on August 26, we learn that his investigation didn’t even include a review of the phone transcript at the core of the entire complaint. Yes, you read that right.
In the letter, the inspector general of the intelligence community explains that, “As a part of its preliminary review, the ICIG did not request access to records of the President’s July 25, 2019, call with the Ukrainian President.” He continued, “I decided that access to records of the telephone call was not necessary to make my determination that the complaint relating to the urgent concern ‘appears credible.’”
It appears that the IC IG bought into the allegations in the whistleblower’s complaint so completely that he didn’t even afford the president the presumption of innocence and appropriate due process. His letter continued, “I concluded that it would be highly unlikely for the ICIG to obtain those records within the limited remaining time allowed by statute.”
His letter makes no claim that he received any pushback from the White House. He simply “anticipated” it would require “lengthy negotiations,” and therefore didn’t even attempt to review the transcript summaries before making his determination the complaint “appeared credible.”
It is unclear if he ever reviewed the transcript before it was made public by the White House. Once the transcript summary was released, it was shown that the whistleblower complaint was riddled with gossip and factual errors, calling into question whether the IC IG would still consider it credible now.
Atkinson’s Promises During His Confirmation Hearing
The 55-year-old Atkinson was nominated for the position by President Trump and “with the support of the Director of National Intelligence Dan Coats,” as Atkinson put it in his opening remarks before the Senate confirmation hearing. He previously served in the DOJ’s National Security Division as an acting deputy assistant attorney general and as senior counsel to the assistant attorney general. He sailed through his confirmation hearing in January of 2018.
Ironic in retrospect, the Senate Select Committee on Intelligence held the confirmation hearing for both Atkinson and Jason Klintenic in tandem. Klintenic assumed the office of general counsel for ODNI, and the two later tangled over whether this whistleblower complaint represented an “urgent concern” under applicable statutes. Atkinson ultimately succeeded in forcing the disclosure of the whistleblower report to the congressional oversight committees.
At the confirmation hearing, Atkinson was repeatedly asked about the whistleblower statute and how he would approach the job in the context of the ICWPA. Here are a few of his exchanges.
In his answer to a question from Sen. Ron Wyden about how he would protect whistleblowers from reprisals, Atkinson pledged to “take their case, treat it very seriously, treat it impartially, follow the facts, wherever they lead.”
He later elaborated on his approach to the whistleblower program in his response to Sen. James Lankford, where he said “as a prosecutor, I understand deterrence and I understand that investigations have to be timely, they have to be thorough, and they have to be effective.”
Wyden asked him about personnel, and the potential for “cleaning house,” to which he responded, “the whistleblower protection program, like any other part of the office, is dependent on having the right people in the office.”
Sen. Dianne Feinstein asked about his ability to be independent in order to be effective. Atkinson’s response was “I think that my training as a prosecutor helps in terms of having a commitment to independence and integrity, as well as discipline, and understanding that there is a need to speak truth to power. The hardest part sometimes is finding the truth. The truth–as a prosecutor in a criminal case, it’s difficult.”
Yes, indeed: “the hardest part sometimes is finding the truth.” Especially when you don’t even look for it.
Atkinson’s Coordination With the House Intel Committee
After sending the House Permanent Select Committee on Intelligence detailed correspondence on Sept. 17 outlining his disagreement with ODNI on whether the complaint amounted to an “urgent concern” under the statute, Atkinson met with the committee behind closed doors two days later on Sept. 19, where he was presumably a strong advocate for his perspective.
It has been reported in various media outlets that Atkinson is scheduled by House Intelligence Committee Chairman Adam Schiff’s committee for another closed-door session this Friday. Since his handling of the whistleblower report has directly led to an impeachment inquiry by the Democrat-controlled House, you can be assured his testimony will be critical to understanding the events that brought us to this point.
Given how much of this constitutional crisis is already playing out before the public, and the implications for the nation, it would seem inappropriate to not have at least a portion of his appearance be in open session. Even if they choose to have an additional closed-door session, there appears to be little reason to hide the entire proceedings from a public increasingly trying to grasp whether these impeachment proceedings represent a final “gotcha” moment for the embattled president, or yet another unsubstantiated “witch hunt,” as the president and his supporters claim.
If the House doesn’t provide for public hearings, Chairman Richard Burr should immediately call Atkinson before the Senate Select Committee on Intelligence and conduct their own hearing. While it is understandable that the Senate wants to avoid anything connected to the messy impeachment saga as long as they can, the concern that the whistleblower statutes are being misapplied and politicized is very much their responsibility to investigate.