Why Inspector General Michael Atkinson Roundly Deserved To Be Fired

Why Inspector General Michael Atkinson Roundly Deserved To Be Fired

Here are the details you need to know to fully understand why President Trump lost confidence in Inspector General Michael Atkinson and exercised his presidential prerogative to replace him.
Margot Cleveland
By

On Saturday, reporters queried President Trump about his Friday firing of Intelligence Community Inspector General Michael Atkinson. Trump’s response seemingly confirmed the left-leaning press and Democrats’ narrative that the firing was retaliation for the IG informing the House Intelligence Committee of a whistleblower’s complaint. That complaint concerned Trump’s conversation with the Ukrainian president that set in motion Trump’s impeachment.

But what the media and Trump’s political opponents won’t tell you is that Trump is right. Atkinson bestowed on the still-unnamed intelligence officer a “whistleblower status he doesn’t deserve.” “He is a fake whistleblower,” Trump said.

The MSM also won’t report the other troubling aspects of Atkinson’s handling of the fake whistleblower’s complaint, some of which Trump also touched on in the briefing. A full vetting of Atkinson’s handling of the so-called whistleblower’s complaint confirms Trump’s take that Atkinson “did an absolutely terrible job.”

But this does require a deep dive into both the law and the fact, as opposed to a mere mimicking of the Democrats’ talking points that seems the default of today’s lazy journalists. So, here are the details you need to know to fully understand why Trump lost confidence in Atkinson and opted to exercise his presidential power-of-appointment prerogative and replace him.

The Ukrainian Phone Call

On Aug. 12, 2019, a still-unnamed CIA official filed with the ICIG a nine-page complaint that alleged Trump was “using the power of his office to solicit interference from a foreign country in the 2020 U.S. election.” The so-called whistleblower complaint relied on hearsay and second-hand information to support its allegations, as well as a bevy of newspaper reports.

The genesis of the complaint was a July 25, 2019, telephone conversation between Trump and the newly elected Ukrainian president, Volodymyr Zelensky. The complaint portrayed Trump’s call with Zelensky as demanding a quid-pro-quo investigation “into the activities of former Vice President Joseph Biden and his son, Hunter Biden” in exchange for U.S. subsidies to Ukraine.

On Aug. 26, 2019, Atkinson forwarded the supposed whistleblower complaint to the then-acting director of national intelligence (DNI), Joseph Maguire. In forwarding the complaint to Maguire, Atkinson maintained that the allegations fell within the statutory provisions of the Intelligence Community Whistle Protection Act (ICWPA). That statute, if applicable, would have provided both whistleblower protection to the complainant and required the DNI to forward the complaint within seven days to the intelligence committees.

But, as Maguire later told the House Intelligence Committee, “because the allegations on their face did not appear to fall into the statutory framework, the Acting DNI consulted the U.S. Department of Justice’s Office of Legal Counsel concerning IG Atkinson’s conclusion that the ICWPA applied.” Maguire included the inspector general “in those consultations.”

The Allegations Didn’t Fit the Whistleblower Definition

In a detailed opinion issued on Sept. 3, 2019, the Office of Legal Counsel confirmed that the ICWPA did not apply to the allegations presented to Atkinson under the auspices of a whistleblower complaint. Rather, as the opinion confirmed, the ICWPA only applies to a statutorily defined “urgent concern,” which, for purposes of the complaint lodged against Trump, required the allegations to concern “a serious or flagrant problem, abuse, violation of law or Executive order or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information but does not include differences of opinions concerning public policy matters” (emphasis added).

But, as the Office of Legal Counsel explained, the complaint against the president did not accuse the president of misconduct related “to the funding, administration, or operation of an intelligence activity.” Rather, the complainant charged Trump with “using the power of his office to solicit interference from a foreign country in the 2020 U.S. election”—an allegation the transcript from the call negated, in any event. Moreover, the DNI does not have “responsibility and authority” over Trump, making the ICWPA further inapplicable to the situation at hand.

Accordingly, the Legal Counsel concluded in a memorandum opinion that, because the “complaint does not arise in connection with the operation of any U.S. government intelligence activity, and the alleged misconduct does not involve any member of the intelligence community,” the ICWPA did not apply.

The Office of Legal Counsel, however, did not leave matters there. “Our conclusion that the ‘urgent concern’ requirement is inapplicable does not mean that the DNI or the ICIG must leave such allegations unaddressed,” it stressed. Rather, “should the DNI or the ICIG receive a credible complaint of alleged criminal conduct that does not involve an ‘urgent concern,’ the appropriate action is to refer the matter to the Department of Justice, rather than to report to the intelligence committees under section 3033(k)(5).” The Legal Counsel then noted that it had referred the complaint to the Criminal Division of the Department of Justice “for appropriate review.”

Atkinson Sidesteps DOJ, Sends to Political Hack

Atkinson ignored the Legal Counsel’s opinion that “the appropriate action is to refer the matter to the Department of Justice, rather than to report to the intelligence committees.” On Sept. 9, 2019, he dispatched a letter to Rep. Adam Schiff, the chair of the House Intelligence Committee, informing him of the complaint. The following day, Schiff demanded Maguire provide the complaint to the committee—something Maguire could not do because it contained communications protected by executive privilege.

In his letter, Schiff also falsely called the complaint a whistleblower complaint and asserted the acting DNI was withholding it from the committee in violation of his “express obligations under the law.” Schiff then implied the White House had somehow interfered to prevent Maguire from fulfilling his duties.

Predictably, a media firestorm erupted, eventually prompting Trump to waive executive privilege and release a copy of both the complaint and a readout of his call to the Ukrainian president. Months later, on Dec. 18, 2019, the Democratic-controlled House impeached President Trump on an abuse of power charge related to his communications with the Ukrainian ambassador and a charge of obstruction of Congress. The Senate acquitted Trump on Feb. 5, 2020.

Atkinson Didn’t Do Basic Review of the Complaint

In the process, many more details were disclosed about the complaint, the complainant, and Atkinson’s handling of the matter. For instance, declassified documents revealed that Atkinson determined the complaint “appeared credible” even though the complainant “was not a direct witness to the President’s telephone call with the Ukrainian President,” and even though “as 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.”

Had Atkinson reviewed the read-out of Trump’s July 25 call, he would have discovered numerous allegations contained in the complaint were false:

For example, the complainant falsely alleged that Trump demanded Zelensky return multiple servers from CrowdStrike, an IT contractor for the Democratic National Committee, that were physically located in Ukraine. Trump made no such demand. The complainant also alleged that Trump urged Zelensky to either hire or retain a particular government prosecutor in Ukraine. That exchange never happened. Additionally, the complainant alleged that a specific State Department official had listened in on the phone call between the two leaders. The State Department stated last week that particular official did not listen in on the phone call.

These blatant falsehoods, which Atkinson would have discovered had he done his due diligence, call into question his conclusion that the complaint “appears credible.” Atkinson’s judgment in finding the complaint “appears credible” is further suspect given that the Atkinson admitted that the claimant had an arguable political bias “in favor of a rival political candidate.”

That Atkinson couldn’t read between the lines of the lawyerly crafted nine-page complaint and see the political hit job in the making also calls into question his acumen and good sense. The tell came early, when the claimant suggested that “Attorney General Barr appears to be involved as well” in the supposed misconduct—a clear attempt to sideline a second attorney general.

Atkinson also failed to spot the “whistleblower’s” deceptive spot-quoting of the relevant statutory language—something necessary to create the appearance that the complaint qualified as an “urgent matter” within the meaning of the ICWPA. Here’s what the complainant wrote:

Significantly, the complainant omitted from the quote the statutory requirement that the misconduct is “relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of the National Intelligence.”

Atkinson should have noticed the selective quoting used in the complaint and realized the reason for the omission: the quid pro quo scenario the supposed whistleblower was selling did not implicate the ICWPA because it did not involve an intelligence activity and Trump was not subject to the authority of the DNI.

Fishy Edits to Whistleblower Form

Atkinson also should have smelled a second coup attempt in the making: He should have smelled Schiff, whose staff coordinated with the so-called whistleblower and directed him to file a complaint with Atkinson.

Schiff’s involvement with the “whistleblower” wasn’t the only fishy fact revealed since news first broke of the “whistleblower’s” complaint against Trump. The Federalist’s Sean Davis uncovered stealth edits the ICIG’s office had made to the whistleblower forms, deleting a stated requirement that, for a complaint to be deemed “credible,” the whistleblower must possess “first-hand information”—something Trump’s accuser lacked.

 

Atkinson’s office later admitted it had changed the forms. House Republicans on the Intelligence Committee questioned Atkinson about the changes and his decision to accept the complaint based on hearsay and rumor. But Schiff has blocked the release of the transcript of Atkinson’s House testimony, leaving the public in the dark concerning why Atkinson changed the stated first-hand information requirement.

That Hidden Testimony Is Damaging to Atkinson

In January, Rep. Devin Nunes, the top Republican on the committee, told “The Sara Carter Show” that “everyone needs to see that testimony and the reason that it’s not being released is because it’s very damaging, not only to the whistleblower, but also to Atkinson himself.” Nunes also told Carter, “Republicans have an active investigation into Intelligence Community Inspector General Michael Atkinson.”

Nunes confirmed yesterday that “Intelligence Committee Republicans have been investigating Atkinson’s handling of the whistleblower complaint and failed to get satisfactory answers or documents that we repeatedly requested.” “Chairman Schiff should send the transcript of Atkinson’s briefing on the whistleblower complaint for declassification review so the American people can see his explanations for themselves,” Nunes told The Federalist.

Given that Nunes’ memo on FISA abuse proved thoroughly accurate—if not understated—his claim that Atkinson’s testimony was damaging to both the whistleblower and to Atkinson deserve credence. Speaking of FISA abuse, in an added wrinkle, Nunes highlighted Atkinson’s previous position in the National Security Division, telling The Federalist that “the new IG report on FISA abuse is damning concerning the time Atkinson served in the National Security Division, when he was responsible for reviewing FISA applications.”

What Is Michael Atkinson Hiding?

Atkinson’s testimony before the Senate Intelligence Committee also proved lacking, revealed in a scathing letter penned by Sen. Tom Cotton, a Republican member of the committee. Following Atkinson’s Sept. 26, 2019

testimony before the Senate Intelligence Committee, Cotton chastised Atkinson for his “disappointing testimony” that “was evasive to the point of being insolent and obstructive.” Cotton also rebuked Atkinson for refusing “to disclose to SSCI members why Atkinson initially determined the anti-Trump complainant had a partisan political bias against Trump.”

“Despite repeated questions, you refused to explain what you meant in your written report by ‘indicia of an arguable political bias on the part of a rival political candidate,’” Cotton wrote. “This information is, of course, unclassified and we were meeting in a closed setting. Yet you moralized about how you were duty bound not to share even a hint of this political bias with us.”

Cotton added that, according to media reports, Atkinson had disclosed “to the House Intelligence Committee not only that the complainant is a registered Democrat, but also that he has a professional relationship with a Democratic presidential campaign.” Cotton then directed Atkinson to inform the Senate Intelligence Committee of “the exact nature and examples of the anti-Trump complainant’s partisan political bias against the president.” Atkinson, however, did not provide the Senate the requested information.

This Guy Is Either Incompetent or Playing Games

This timeline and added details reveal many problems with Atkinson’s performance, beginning with his inability to properly interpret the unambiguous statutory language of the ICWPA. That plain language proves the “whistleblower” was a “fake whistleblower.”

Atkinson also ignored the Office of Legal Counsel’s opinion that where a matter is not covered by the ICWPA, but potentially involves criminal conduct, “the appropriate action is to refer the matter to the Department of Justice, rather than to report to the intelligence committees under section 3033(k)(5).” Further, IG Atkinson knew the matter had already been referred to the Criminal Division of the DOJ, but nonetheless informed Schiff of his receipt of the non-ICWPA complaint. That decision evidences a disregard for the competency and integrity of the DOJ.

Atkinson’s conclusion that a complaint based solely on hearsay and second-hand information appeared “credible” is also questionable. And that Atkinson reached this conclusion without reviewing the read-out of Trump’s call with the Ukraine president and in light of the political bias of the claimant further calls into question Atkinson’s judgment.

The changes to the whistleblower forms and the deletion of the stated “first-hand knowledge” requirement is even more troubling, as is the fact that Atkinson could not provide satisfactory answers to the House Committee and refused to respond to questions posed by the Senate’s Intelligence Committee. Or, in Trump-speak: He did an absolutely terrible job.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.

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