Congress weighs whistleblower safeguards after Trump saga

This article features our Deputy Director of Legislation Irvin McCullough and was originally published here.

The Senate Intelligence Committee wants to give whistleblowers who work for U.S. intelligence agencies groundbreaking new protections, a response to what members see as flaws in the process revealed in the leadup to President Donald Trump’s first impeachment.

The committee’s new intelligence authorization bill would enable spy agency whistleblowers to more easily communicate concerns straight to Congress. It would make disclosure of the identity of an anonymous whistleblower a crime. It would empower anyone whose name was revealed against his or her will to fight back in court.

And it would make clear that no administration official can kill a complaint by simply keeping it from reaching Capitol Hill.

The proposed changes are in the fiscal 2022 intelligence measure, which the panel approved late last month.

The legislation was fueled by concerns that arose in 2019, when a report from an anonymous whistleblower from one of the intelligence agencies became the center of political debate in Washington and eventually led to Trump’s first impeachment trial in January 2020.

On Aug. 12, 2019, that whistleblower contended that Trump had sought to use U.S. aid and other levers of American power to coerce Ukraine’s leaders into manufacturing dirt on Joe Biden, then his leading Democratic rival in his reelection bid.

Kept from Congress

For more than a month, Joseph Maguire, the acting director of national intelligence, withheld the complaint from Congress with the help of the Justice Department. It was only delivered to Congress on Sept. 25, 2019, after lawmakers filed a subpoena and press disclosures had revealed the outlines of the complaint.

Meanwhile, Trump and his allies in Congress sought to discover and disclose the whistleblower’s identity, particularly after a conservative outlet reported a name and work history without direct confirmation. And Trump even hinted the person should be executed.

Sen. Rand Paul, R-Ky., threatened to publicly disclose the name. GOP Reps. Devin Nunes of California and Jim Jordan of Ohio appeared to be trying to force a witness at one House Intelligence Committee hearing to divulge the whistleblower’s identity. Those efforts drew objections from Democrats and many Republicans at the time.

This week, California Democrat Adam B. Schiff, the chairman of the House Intelligence Committee who was the lead manager of Trump’s first impeachment, told CQ Roll Call in a statement that his panel will review the new Senate proposal, and he expects to propose his own legislation to address this issue and others that affect congressional oversight.

“The abuses of the Trump administration laid bare the urgent need to bolster whistleblower protections, including within the Intelligence Community,” Schiff said. “IC personnel who courageously expose wrongdoing and illegality through the whistleblower process must never fear retribution for doing the right thing.”

Mark Zaid, a lawyer who represented the Ukraine whistleblower, called the Senate’s new intelligence bill a positive step.

“The objective they are trying to achieve is spot-on necessary, because of what we encountered during the impeachment case,” Zaid said in an interview. “They are filling in the holes we had to jump around.”

Proposed new system

Longtime whistleblower advocate Ron Wyden, D-Ore., the Senate Intelligence member who wrote the committee’s proposed changes to laws governing disclosure of wrongdoing in intelligence agencies, said they would “address abuses by the Trump Administration.”

Currently, whistleblowers in the spy agencies can send only “urgent” concerns to Congress — and only after routing them through senior officials.

Specifically, an inspector general, either from a particular spy agency or of the overall intelligence community, has to review the complaint to determine that it is urgent enough for the congressional Intelligence panels to consider. If it is deemed urgent, then the agency head must send the complaint to the Intelligence committees.

But the process did not work as planned in 2019. Maguire withheld the Ukraine complaint from Congress, while Justice Department attorneys argued that the matter was not urgent, among other claims.

Experts pointed out at the time that only inspectors general can determine urgency and that Maguire did not have authority to do anything other than convey the report to Capitol Hill.

The new Senate bill would retain the existing process for complaints concerning urgent issues but would make plain that the intelligence agencies’ inspectors general “shall have sole authority” to determine a complaint’s urgency.

Crucially, the legislation would add a new, alternative avenue for whistleblowers to inform Congress of alleged wrongdoing, whether the issue could be deemed urgent or not.

In particular, the intelligence authorization measure would allow whistleblowers in the spy agencies to communicate concerns to the Intelligence committees via newly created “security officers” at their agencies.

But if those security officers do not provide the whistleblowers with “procedural direction” on how to notify Congress within 30 days — or that direction is “insufficient” — then the employee can go straight to the House and Senate Intelligence committees with the concerns.

Moreover, the bill would seek to protect intelligence community whistleblowers — both agency employees and contractors — from the “knowing and willful” disclosure of their identities against their wishes, which could be retaliation against someone who discloses.

Up until now, experts said, a prohibition against disclosure of a whistleblower’s name has not previously been made plain in law.

The bill also would give whistleblowers whose identities are revealed against their will access to courts to seek redress — the first time intelligence community whistleblowers would have such an explicit right, the experts said.

Clearer and stronger

Kel McClanahan, executive director of National Security Counselors, a law firm that represents defense and intelligence personnel, said the measure clarifies and strengthens existing law.

“This bill will go a great distance toward harmonizing the treatment an Agriculture Department employee and a CIA employee get for the same protected activity,” he said.

The bill also contains a provision that would seek to improve the process by which intelligence agency employees can contest revocation or suspension of their security clearances, which is frequently how agency bosses punish whistleblowers for disclosing problems, McClanahan said.

Nevertheless, spy agency whistleblowers still must contest their actions inside their agencies, often appealing to the very people who are accused of wrongdoing, several legal experts said.

Unlike federal workers in other agencies, intelligence personnel cannot appeal to the Office of Special Counsel or the Merit Systems Protection Board, said Melissa Wasser, policy counsel for the Project on Government Oversight, which advocates stronger protections for personnel who disclose wrongdoing.

“Our top recommendation when it comes to intelligence community whistleblowers is making sure that they’re able to get some level of independent enforcement in the process,” Wasser said.

Way forward

The outlook for the Senate Intelligence Committee’s provisions is not yet clear. The House Intelligence panel has not yet marked up its intelligence authorization bill.

Similar measures to add protections for spy agency whistleblowers have been proposed but defeated previously on Capitol Hill, due partly to GOP objections, including from Nunes, the top Republican on the House Intelligence Committee. Nunes did not reply to a request for comment.

Marco Rubio of Florida, the top Republican on the Senate panel, supports the new proposals.

The measure “improves the Intelligence Community’s (IC’s) Inspectors General authorities and enhances the congressional intelligence committees’ already-vigilant oversight of IC whistleblower actions,” a Rubio aide said in a statement to CQ Roll Call.

The House Oversight and Reform Committee approved in June a bill by New York Democrat Carolyn B. Maloney, the panel’s chairwoman, that addresses whistleblowing laws for non-intelligence employees. The Senate has yet to mirror that effort.

But intelligence agency whistleblowers are different. Their disclosures often involve classified data. If such whistleblowers do not have a way to tell Congress secret information without ruining their lives, then they often turn to the press or to outfits such as WikiLeaks, potentially jeopardizing U.S. security.

Yet, as the 2019 Ukraine whistleblower case showed, previous laws and presidential directives have still not created a system that assures whistleblowers not only that they will be protected but also that their concerns will be addressed, analysts said.

“Everyone who cares about congressional oversight understands that whistleblowers shouldn’t fear either retaliation or futility for stepping forward,” said Irvin McCullough, an expert on laws governing whistleblowers with the Government Accountability Project, a group that provides them legal representation and advocacy. “We are all better off — and our country more secure — when we protect those who make congressional oversight possible.”