Note: this article, featuring our National Security Analyst Irvin McCullough, was originally published here.
Trump’s Attacks Fuel Alarm That Whistleblower Protections Fall Short
President Donald Trump’s escalating war on the whistleblower who raised concerns over his July phone call with Ukraine’s president is exposing what experts say are flaws in the law, which doesn’t sufficiently protect whistleblowers from being publicly identified and harassed.
Those concerns are growing as the president calls for the whistleblower to be “exposed” and “questioned,” while accusing him of having “ties to one of my Democratic opponents” and perpetrating a “hoax.” On Wednesday, he said, “I think it is important to find out who that person is” and complained, “I do not know why a person that defrauds at the American public should be protected.” Since Sept. 20, the @realDonaldTrump account has tweeted about the whistleblower or his or her attorneys at least 44 times, while the president’s allies at the Republican National Committee and on Capitol Hill have amplified those attacks with salvos of their own.
Meanwhile, amateur internet detectives have been speculating about the whistleblower’s identity — searching for clues within the complaints itself, combing White House personnel records and even tweeting his supposed name at the president with images of pitchforks and calls to “get him.”
One pair of right-wing operatives even issued a $50,000 bounty for “any information” relating to the whistleblower’s identity shortly after the complaint became public, prompting the whistleblower’s attorney Andrew Bakaj to inform acting Director of National Intelligence Joseph Maguire in a letter last month of potential threats to his client’s safety.
House Democrats negotiating for the whistleblower’s testimony have reportedly been considering extreme measures to protect the anonymous intelligence official’s identity, which could be revealed by Trump and his allies with little or no legal consequence, experts say — the only person in the executive branch legally obligated to protect the whistleblower’s identity is the intelligence community’s inspector general, Michael Atkinson.
Recent leaks about the whistleblower’s potential political “bias” — first mentioned, though not elaborated upon, by Atkinson, who ultimately determined the complaint to be “urgent” and credible — have further fueled concerns among national security attorneys that the attacks will deter future whistleblowers from filing complaints and create an accountability vacuum in the intelligence community.
“People only come forward when they feel comfortable they won’t be retaliated against,” said Irvin McCullough, a national security analyst for the Government Accountability Project who focuses on intelligence community and military whistleblowing. “Given the president’s clear retaliatory animus toward intelligence whistleblowers, it’s hard to imagine more officials risking their careers to blow the whistle.”
That’s especially true, experts say, given how lopsided the risks are — even without the president calling for his or her exposure almost daily. Whistleblowers, specifically within the intelligence community, are vulnerable to retaliation and having their security clearances revoked, which could hinder their ability to secure a job in the intelligence community in the future.
On Wednesday, attorneys for the whistleblower rejected reports that their client had a “professional relationship” with a Democratic presidential candidate. “First, our client has never worked for or advised a political candidate, campaign, or party,” they said in a statement. “Second, our client has spent their entire government career in apolitical, civil servant positions in the Executive Branch. Third, in these positions our client has come into contact with presidential candidates from both parties in their roles as elected officials — not as candidates.”
It’s unclear whether the president knows the whistleblower’s name. His confidants are certainly interested; one person close to the president said he would like to find out the whistleblower’s identity, describing him or her as “a political operator” who seems to be part of “a coordinated campaign.”
But if Trump learned the person’s name, he could choose to release it in the name of “transparency” if he wishes, McCullough said. “It’d be a gross attack against the intelligence oversight system, especially given the chilling effect that release would create, but it’s within his power to launch that attack.”
There’s little stopping Trump’s congressional allies from revealing it, either. Members of Congress can be held accountable for violating congressional rules — for example, a member of the House Intelligence Committee illicitly disclosing information gleaned by that panel could be censured by the House. But lawmakers “can’t be legally held accountable for their official actions by any other tribunal,” said Kel McClanahan, executive director of the National Security Counselors law firm.
The Intelligence Community Whistleblower Protection Act of 1998, which provided a framework for intelligence community whistleblowers to report their concerns to Congress through their an inspector general, didn’t envision a world where a whistleblower seeking anonymity could be exposed online by social media sleuths with tens of thousands of followers.
Longtime intelligence officials said the culture of the CIA, where the whistleblower reportedly works, is apolitical, and it’s considered inappropriate to ask about someone’s partisan leanings. A former official Trump National Security Counsel noted the inscription carved on the wall of the agency’s headquarters in Langley, Va.: “And you shall know the truth and the truth shall set you free.”
“These are the people who look at that every morning and truly believe that the process was built to work,” the former official said.
Substantively, the whistleblower’s identity and claims about his or her political agenda might not matter much — not only did the White House release a rough transcript of the president’s call with the Ukrainian president, Volodymyr Zelensky, that confirmed his account in detail, but the president in subsequent days went on to openly call on the government in Kyiv to investigate Joe Biden, the front-runner for the 2020 Democratic presidential nomination.
Politically, however, Republicans perceive an opening. House Minority Leader Kevin McCarthy, House Intelligence Committee ranking member Devin Nunes, and House Oversight Committee ranking member Jim Jordan, have repeatedly questioned the whistleblower’s credibility and motivations for coming forward, and the Republican National Committee has published news releases highlighting his or her attorneys’ alleged ties to Democrats.
“Frankly, any witness, when you’re trying to determine credibility, you have to ask two fundamental questions,” Jordan told NPR late last month. “The first one is: Do they have firsthand knowledge? Were they an actual witness? The second question is motivation. This whistleblower comes up short in both areas.”
Sen. Lindsey Graham (R-S.C.) has called for the whistleblower to be “cross-examined” in public, should Trump be impeached over the Ukraine scandal.
“If the whistleblower’s allegations are turned into an impeachment article, it’s imperative that the whistleblower be interviewed in public, under oath, and cross-examined,” Graham told Fox on Sunday.
Republicans have also seized upon a recent New York Times account to accuse the whistleblower of collaborating with House Democrats, who say they merely connected him or her with an attorney and advised he or she to file a formal complaint.
There are a couple statutes that could theoretically shield the whistleblower, but each has its own problem.
The Privacy Act, which does not apply to the White House, might prohibit executive branch officials from revealing the whistleblower’s identity, according to McClanahan. But finding them liable in court “would be extremely problematic because the Privacy Act is full of loopholes.”
Another potential “saving grace” for the whistleblower should Trump’s allies learn his or her identity is the Intelligence Identities Protection Act, which makes it a federal crime to intentionally disclose the identity of a covert agent to anyone unauthorized to receive classified information.
The legal peril is real: Scooter Libby, a former top George W. Bush administration official, was indicted in 2005 on charges related to his leaks about Valerie Plame, who was then an undercover officer at the CIA. In 2018, Trump pardoned Libby, who was convicted in 2007 for perjury and obstructing justice.
But McCullough cautioned that the scope of that statute only covers those working within the intelligence community whose identities are classified and not enough is known about the whistleblower’s status within the intelligence community to determine whether the statute would apply.