This article, featuring our legal director Tom Devine, was originally published here.
Legal Implications of Outing the Whistleblower
In one heated exchange during day three of the impeachment hearings, Rep. Adam Schiff cut off a line of questioning to protect the whistleblower’s identity, saying the whistleblower has “a statutory right to anonymity.” But the law he cited does not explicitly prohibit members of Congress from disclosing a whistleblower’s name.
Federal law prevents only inspectors general and their staffs from revealing the name of a whistleblower.
The dispute over the identity of the whistleblower came during the Nov. 19 testimony of Lt. Col. Alexander S. Vindman, a Ukraine expert on the White House’s National Security Council who listened in on President Donald Trump’s July 25 call with the president of Ukraine, Volodymyr Zelensky. In the hearing, Vindman disclosed that he spoke with “an individual in the intelligence community” about the call. Rep. Devin Nunes, the ranking Republican on the House intelligence community, asked which agency within the intelligence community when he was cut off by Schiff, the committee chairman.
“If I could interject here,” said Schiff. “We need to protect the whistleblower. … I want to make sure that there’s no effort to out the whistleblower.” After Nunes resumed questioning Vindman, Schiff again interrupted.
“The whistleblower has the right — a statutory right to anonymity,” Schiff said. “These proceedings will not be used to out the whistleblower.”
The Trump campaign fired back with a statement to reporters while the hearing was in progress that said “there is NO LAW that gives the whistleblower a ‘statutory right to anonymity,’ as Schiff claims.”
Later in the hearing, when challenged to produce the statute, Schiff said, “I would be happy to enter into the record the whistleblower statute that allows the whistleblower to remain anonymous.”
Schiff’s office referred us to the Intelligence Community Whistleblower Protection Act of 1998, which it said combined with the Inspector General Act of 1978 sets forth the process that the whistleblower must follow in order to make a “protected disclosure.”
It is true that the whistleblower is permitted under those federal laws to anonymously report alleged wrongdoing to inspectors general, Congress and other appropriate authorities, as explained in an FAQ on the website of Kohn, Kohn and Colapinto, which bills itself as “the nation’s top whistleblower law firm,” and described in detail in a Sept. 23 report by the nonpartisan Congressional Research Service.
The IC whistleblower statute “defines formal processes for submitting complaints that ensure the protection of any classified information,” the CRS report says, and the Inspector General Act specifically bars the inspectors general and their staffs from disclosing the identity of a whistleblower.
“CRS, Sept. 23: Section 7(b) of the Inspector General Act of 1978 (5 U.S.C. App.) provides for the identity of an employee making a complaint, such as a whistleblower, to remain undisclosed to the extent practicable:
The Inspector General shall not, after receipt of a complaint or information from an employee, disclose the identity of the employee without the consent of the employee, unless the Inspector General determines such disclosure is unavoidable during the course of the investigation.”
It is this law that the Trump campaign also cites in criticizing Schiff. “Numerous legal experts have stated there is no legal prohibition on disclosing the whistleblower for others than the intelligence community inspector general,” the campaign said in an email to FactCheck.org.
While there is no statute that specifically prevents anyone, other than the inspectors general and their staffs, from disclosing a whistleblower’s identity, legal experts we consulted said there may be cases when disclosing the identity of a whistleblower could result in actions that are subject to other federal laws.
“[T]here is no generic whistleblower confidentiality statute,” Tom Devine, legal director of the Government Accountability Project, told us in an email. “However, it’s not just that the vacuum fails to make outing an anonymous [whistleblower] legal.”
In a blog post titled “Fast Facts on Legal Accountability for Outing the Anonymous Whistleblower,” Devine lists some of the laws that could be triggered if the whistleblower is unmasked.
For example, Devine writes, “18 USC 1505 … makes it a felony with five year’s imprisonment to engage in communications that ‘endeavor to influence, obstruct, or impede’ any ‘inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress.’” Schiff’s staff also cited this law to us, saying it is illegal to obstruct a congressional investigation.
Devine writes that “exposing the anonymous whistleblower will have a chilling effect on others who want to defend the law but are afraid of retaliation,” and will encourage “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.”
Stephen Kohn, of Kohn, Kohn and Colapinto, told us in an email that unmasking an anonymous whistleblower also could result in legal exposure if it results in retaliation.
Kohn cited the case of Halliburton Inc. v. Administrative Review Board, in which a Halliburton employee, Anthony Menendez, won a retaliation lawsuit after his employer disclosed in an email that he anonymously filed a complaint about Halliburton’s accounting practices with the Securities and Exchange Commission.
“Menendez was horrified when he saw the email disclosing his identity as the SEC complainant, and he described that day as one of the worst in his life. Colleagues began to treat him differently, generally avoiding him,” according to the court opinion upholding the Review Board’s ruling in Menendez’s favor.
Menendez was awarded $30,000 in damages under a federal law that protects whistleblowers for employees of publicly traded companies.
“The federal obstruction of justice law, which applies to ALL PEOPLE, government employees or not, protects whistleblowers from retaliation by making it a crime to retaliate,” Kohn said in his email to us. “Furthermore, ‘outing’ a CIA agent or intelligence community employee’s identity would have severe employment-related consequences and would unquestionably constitute a serious felony under federal law.”
That may be, but the act of obstructing a congressional investigation or illegally retaliating against a whistleblower is separate from the act of identifying the whistleblower, which is prohibited only for the inspectors general and their staffs.