Fast Facts on Legal Accountability for Outing the Anonymous Whistleblower

By Tom Devine, Legal Director

Donald Trump, Jr. and others’ enthusiastic efforts to expose the anonymous impeachment whistleblowers are felonies under relevant whistleblower laws, and the President has liability for launching their campaign through his own demands. While commentators are right that the whistleblower cannot file a retaliation lawsuit, that does not make this campaign legal. Based on federal law, whistleblower retaliation should be another Article of Impeachment.

  1. Obstructing a congressional investigation is a felony. 18 USC 1505 has been on the books since 1948. It makes it a felony with five year’s imprisonment to engage in communications that “endeavor to influence, obstruct, or impede” any “any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress.”

Exposing the anonymous whistleblower violates this law by trying to influence, obstruct, and impede a congressional investigation. Congressional oversight generally, and the impeachment investigation in particular, require a free flow of information from knowledgeable Executive branch employees. That is why Congress passed the Lloyd Lafollette Act of 1912 to protect all congressional communications. That is a primary reason why Congress repeatedly has unanimously approved rights in the Whistleblower Protection Act.

It is beyond credible disagreement that exposing the anonymous whistleblower will have a chilling effect on others who want to defend the law but are afraid of retaliation. The President’s exposure campaign attempts to influence proceedings, by scaring off witnesses whose testimony challenges the President’s actions. That obstructs a balanced record, and impedes achieving a complete record.

  1. Tampering with a federal witness is obstruction of justice and a felony. 18 USC 1512 has been on the books since 1982. Among analogous provisions, 18 USC 1512(b) makes it a felony with 20 years imprisonment when an individual “persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to — (1)influence, delay, or prevent the testimony of any person in an official proceeding….” The President’s public attacks on whistleblowers and efforts to expose their identity have led to death threats, and are a clear campaign to terrorize witnesses into silence.
  2. Retaliation against a federal witness is a felony. 18 USC 1513(e) has been on the books since 1980. It makes it a felony with ten years imprisonment to “retaliate, [or] take any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense….” The Intelligence Community Inspector General to whom the whistleblower made the disclosure is a law enforcement officer, and the congressional impeachment investigation is the constitution’s unique law enforcement proceeding for alleged crimes by the President.
  3. The President and his son are trying to harm the anonymous whistleblower, and interfere with the congressional probe. This conclusion is independent of judgments about the President’s actions on Ukraine. He has accused the whistleblower of treason and suggested that the “smart” approach would be to kill him. Others publicly accused of being impeachment-related whistleblowers have faced repeated death threats on social media. The message is clear: you take your life in your own hands by speaking out against the President. The point is to scare whistleblowers out of testifying against the President.

The Justice Department will not enforce these laws, so accountability is unrealistic for most who are engaged in the exposure campaign. However, Congress is not dependent on Justice to enforce those laws through the impeachment process when the President violates them. Current actions by the president’s family go beyond obstruction of justice. They are obstruction of the constitutional cornerstones for presidential accountability. These are high crimes, not misdemeanors. Hopefully that still matters for both parties in Congress.

Call For Overdue Reform

The exposure campaign also attacks a first principle of law enforcement generally, and whistleblower laws in particular – the right to submit evidence anonymously, to neutralize the fear of retaliation. All whistleblowing disclosure laws since 1978 include protection against exposing the whistleblower’s identity. The Sarbanes Oxley law actually requires all publicly traded corporations to create anonymous hotlines for whistleblowing to the Board of Directors.  Canceling the right to anonymity as a political tactic is irresponsible. It would increase retaliation, and drastically reduce whistleblowers’ role making a difference against abuses of power that betray the public trust.

While this outrage demands accountability for presidential lawlessness, it also spotlights the need to put teeth into the law protecting congressional whistleblowers. Responding to a gag order by President Taft, in 1912 Congress passed the Lloyd Lafollette Act that provides an absolute, no exceptions right to communicate with Congress. It is illegal to interfere with or deny that right.

While relevant for impeachment, unfortunately the Lloyd Lafollette Act is just background noise for nearly all other whistleblowers.  It does not allow them to challenge violations in court. The only accountability is a largely dormant option for Congress to cut off salaries of offending officials, which doesn’t help the victim and is unrealistic with partisan deadlock. Intelligence Community whistleblowers do not have access to the Whistleblower Protection Act, and their own weaker rights do not protect congressional communications.

This is unacceptable. Corporate employees who challenge fraud have access to jury trials in court. But intelligence whistleblowers expose threats to our nation that are even more severe than bilking shareholders. In this case, the issue is alleged corruption that threatens America’s sovereignty and our foundation of free elections. While of course their transparency channels must be limited, retaliation against intelligence community whistleblowers is a far higher threat to our nation – in the present case a clear and present danger that threatens America’s democracy.

Since 2002 Congress has passed 15 laws covering nearly the entire private sector that permit whistleblowers to seek justice through jury trials in court. Federal employees defending the citizens should have as much access to justice as corporate workers defending the shareholders.  It is unrealistic for the public to expect first class commitment from federal employees if they have second-class rights against retaliation.