Eric Havian and Michael Ronickher, Opinion contributors Published 3:00 a.m. MT Dec. 3, 2019 | Updated 9:12 a.m. MT Dec. 3, 2019
Whistleblowers have been at time essential and detrimental to a country’s democracy, but what makes them different than a leaker? We explain. Just the FAQs, USA TODAY
Several weeks ago, Republican Sen. Rand Paul of Kentucky stood before a raucous audience at a rally for President Donald Trump and boasted that “we also now know the name of the whistleblower.” Paul then thundered at the news media, “Do your job, and print his name!” The senator did not, however, utter that name himself.
At a recent House impeachment hearing, Republican Rep. Devin Nunes pointedly asked Army Lt. Col. Alexander Vindman whom he had told about a key July 25 call between Trump and Ukrainian President Volodymyr Zelensky — a transparent attempt to have Vindman disclose the identity of the whistleblower. Intelligence Committee Chairman Adam Schiff shut down the questioning. But Nunes did not speak a name.
The president has also weighed in. “You know who the whistleblower is. So do I,” he told Fox News less than two weeks ago. He said that if Schiff did not, “then he’s the only person in Washington who doesn’t.” Like most other Republicans, however, the president did not mention a name.
Republicans taking good legal advice
Despite mentions on several conservative websites and social media accounts, the identity of the whistleblower has not been confirmed or widely circulated. The president has not named anyone, and while Paul has used a name at least twice — once on WMAL talk radio in Washington and once on the conservative One America News Network — the senator has said that he is not sure the person is in fact the whistleblower.
The most vocal Trump defenders in Congress have fallen into lockstep, excoriating Democrats for maintaining the whistleblower’s anonymity while in almost every case carefully avoiding disclosure themselves.
Why the relative restraint? The most likely answer is good legal advice.
Contrary to a recent fact-check article criticizing Schiff’s statement that the whistleblower has a “statutory right to anonymity,” multiple laws provide exactly that protection. And for all their posturing, Republicans seem to know it.
For example, the Intelligence Community Whistleblower Protection Act makes it unlawful to take any “action constituting reprisal” against whistleblowers who follow the proper procedures to report national security concerns, as the whistleblower did here. Similarly, it is obstruction of justice to “retaliate” against a person “for providing to a law enforcement officer” information about a “possible” federal crime, which would include bribery.
The law is clear that “outing” a whistleblower can indeed constitute retaliation and reprisal. In just one example of many, a union posted the names of employees who had sued it. That outing was unlawful retaliation because, as the court explained, “no one volunteers for the role of social pariah.”
USA TODAY Editorial Board: Don’t reveal the whistleblower on Donald Trump’s phone call with Ukraine
Another land mine of liability is the Inspector General Act, which states that when a whistleblower comes forward, as happened here, “the inspector general shall not disclose the identity of the employee without the consent of the employee” unless disclosure is “unavoidable.”
If Paul’s information is traceable to a leak by someone in the IG’s office, which seems entirely plausible, disclosure could make the senator complicit in furthering that unlawful act.
These various legal protections are familiar to those of us who represent whistleblowers. Nearly every significant whistleblower regime in the United States, and there are many, provides similar assurances of anonymity.
Other agencies protect identities
For example, the SEC program permits whistleblowers to submit their information anonymously. Over the 10 years of the program, SEC attorneys have told us many times that targets of the resulting investigations are not informed of the existence of a whistleblower, let alone the person’s identity. The IRS provides similar assurances of confidentiality.
The protections that shield the Ukraine whistleblower from disclosure wisely mirror these corporate whistleblower protections.
The reason for such policies is self-evident. Whistleblowers point people to critical facts being hidden. But they sometimes provide information about misconduct of which they have little or no direct knowledge. The whistleblower may provide a “witness directory” but not be a witness. In that case, the government’s case will generally not depend on the whistleblower’s credibility, but on the credibility of witnesses with firsthand knowledge and evidence.
In such circumstances, no legitimate purpose is furthered by disclosure of the whistleblower’s identity, especially to the target of their whistleblowing. Disclosure can shift the story to the whistleblower’s irrelevant credibility, with the added bonus of deterring future whistleblowing. Of course, that is exactly why those whose bad acts are exposed by whistleblowers try to force the disclosure.
Safeguarding an identity: Trump has no right to confront the whistleblower who triggered an impeachment inquiry
That appears to be the playbook of the president’s defenders. The Ukraine whistleblower is a paradigm of someone whose identity is entirely irrelevant to the inquiry he or she launched. As far as we can tell, the information in the whistleblower’s complaint was largely secondhand, although it has proved remarkably accurate. As witness after witness undermines a hodgepodge of whack-a-mole defenses, presidential defenders increasingly focus on the identity and credibility of the person who started it all, an irrelevant consideration.
Perhaps it is frustrating to Paul that he feels constrained to withhold information he views as an open secret. Or perhaps the senator and others have decided there is more political benefit in bashing Democrats over their refusal to unmask the whistleblower than in confronting an actual career intelligence officer, who may have an unremarkable political profile. Or perhaps Paul’s just worried about breaking the law.
If the opinion of congressional lawyers prevails, we may never know who blew the whistle. And that is exactly how it should be. The whistleblower’s service is done. It is up to the witnesses now.
Eric Havian leads Constantine Cannon’s whistleblower group and has represented whistleblowers for 25 years. Michael Ronickher heads the firm’s Washington, D.C., whistleblower group and served for 10 years at the Justice Department.
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