This article, featuring our Legal Director Tom Devine, was originally published here.
Whistleblowers 101: Why Keep Their Identifies Secret?
A whistleblower complaint started the story that led to the impeachment inquiry into President Donald Trump’s dealings with Ukraine — and it’s still a main focus of the debate.
While lawmakers from both parties have called to protect the original whistleblower from retaliation by keeping his or her identify secret, staunch Republican supporters of the president have demanded the person to be publicly identified, arguing that would help determine if the whistleblower had political motivations. (It could also distract from the substance of the investigation.)
Republicans requested the alleged whistleblower be one of the witnesses to testify in public hearings that begin this week as part of the impeachment inquiry. House Intelligence Committee Chairman Adam Schiff wrote Saturday that testimony from the alleged whistleblower is “redundant and unnecessary” adding that because of the president’s threats, the individuals appearance “would only place their personal safety at grave risk.”
Whistleblowers are protected by law from the negative repercussions of coming forward because they are seen as providing an important service to American institutions.
Here’s some of background useful to know in order to follow the debate about the role of whistleblowers in the ongoing impeachment inquiry.
What is a whistleblower?
In the most basic sense, whistleblowers are people who become aware of corruption or other wrongdoing and take steps to do something about, John Kostyack, executive director of the National Whistleblower Center told ABC News.
In the context of the federal government, whistleblowers are government employees or officials who raise concerns about waste of government resources, abuse of power, fraud, or threats to public health, safety, or national security. In most cases they’ve followed a process to report their concerns officially to superiors in their government agency or an independent watchdog like an inspector general.
Why do whistleblowers have special protections?
Whistleblowers can serve an important function in improving organizations, eliminating corruption, and limiting government waste of taxpayer resources. Kostyack said there’s always been concern that individuals who report misconduct could face retaliation from people involved in that misconduct or who don’t want it to become public.
He said the resolution that’s considered the first whistleblower protection law was adopted by the Continental Congress in 1778 after sailors that reported suspected war crimes by a Navy commander were thrown in jail.
“The core idea is that we need whistleblowers if we want to enforce the laws that we’ve passed and essentially have a democracy,” he said, adding that the first whistleblower law “was framed as a legal duty and also a patriotic duty from the beginning and from the last 200 plus years we have had a bipartisan consensus that whistleblowers need that kind of protection.”
Under the Inspector General Act that dictates how independent watchdogs operate within government agencies, inspectors general cannot reveal the identity of an employee who files a complaint without that person’s consent unless it’s unavoidable that their identity will become part of the investigation.
That law doesn’t specifically bar members of Congress or private citizens from revealing information like the whistleblower’s name. But because of concerns about retaliation or deterring future whistleblowers many lawmakers involved in the impeachment inquiry have said they believe it’s in the public interest to keep the name confidential.
Even though it may not specifically be illegal for someone like President Trump to say the whistleblower’s name publicly, the Ukraine whistleblower’s lawyers argue that public calls to identify the whistleblower violate other laws that make it illegal to interfere with or retaliate against a witness in a government proceeding. They say the whistleblower in this case — and his or her family — have received numerous threats and that repeatedly bringing up their identity constitutes retaliation.
What’s different about the whistleblower who prompted the impeachment inquiry?
The whistleblower who submitted the complaint about the administration’s conduct in Ukraine has been described as a member of the intelligence community, which prompts special concerns about how complaints are handled because they can reference classified information.
Whistleblowers from agencies that handle classified information are protected from retaliation if they report wrongdoing through official channels, like reporting to a superior or the inspector general for the intelligence community. If the inspector general determines the complaint is of “urgent concern” it is supposed to be transmitted to Congress within seven days, but Democrats in Congress have raised concern that procedure wasn’t followed in this case.
Once the information is transmitted to Congress it becomes harder to guarantee that a whistleblower’s identity remains confidential, though many members of Congress have expressed support for protecting the Ukraine whistleblower from retaliation. But Tom Devine, legal director for the Government Accountability Project, an organization that relies on and protects whistleblowers, said efforts or threats to publicly identify the whistleblower could still violate civil or criminal laws against interfering with congressional communications or interfering with or retaliating against a witness in a federal investigation.
“There’s nothing that allows the whistleblower to defend him or herself but the activities to out the whistleblower’s identity are illegal under a whole series of federal statutes,” he said.
Why do lawmakers want to protect the whistleblower’s identity?
Despite calls from the president and some Republicans to publicly identify the Ukraine whistleblower, many members of Congress have called for the person’s identity to be protected.
They argue the individual’s identity is not crucial to the ongoing impeachment inquiry because other witnesses have already provided more information on the details in the complaint and that publicly identifying the person will subject that person and his or her family to threats and other risks, which they say is itself a form of retaliation.
“It really does seem to be such an unnecessary burden and unfair to these whistleblowers who have every right to expect confidentiality to suddenly change the rules of the game,” Kostyack said.
Democrats and the community of government watchdogs have also raised concerns that attacks on any whistleblower can deter others from coming forward, making it more difficult to identify and address wrongdoing within the government.