Note: this article, featuring our Legal Director Tom Devine and our National Security Analyst Irvin McCullough, was originally published here.
Republicans Abandon Tradition of Whistleblower Protection at Impeachment Hearing
Efforts to out the Ukraine whistleblower could have a chilling effect, put U.S. security at risk, experts say.
On Oct. 8, Alan Souza, the lead Republican lawyer on the House Intelligence Committee, wrote an email to Mark Zaid, the lawyer representing the person who first anonymously disclosed concerns that President Donald Trump was pressuring Ukraine for his own political gain.
In the email, Souza assured Zaid that the panel “always maintains the confidentiality of the whistleblower,” according to a reference to the email in a Nov. 6 letter to the committee from Zaid’s law firm that is reproduced on its website.
Souza’s message to Zaid was that the committee takes seriously its responsibility to safeguard the identity of people — like the Ukraine whistleblower — who choose to anonymously report alleged wrongdoing through official channels provided for in law.
However, a little more than a month later, at a hearing Tuesday, Republicans on the same committee seemed to have forgotten that tradition as they questioned a White House official in ways that appeared designed to force disclosure of the Ukraine whistleblower’s identity.
The norm and the law on protecting anonymous intelligence whistleblowers — not to mention the broader cast of people disclosing problems to authorities — are under siege as never before, not just from some lawmakers but also from the president, experts say.
If those traditions are lost, it could have grave repercussions for the personal safety of witnesses and for the effective and ethical functioning of the U.S. government and the private sector, experts say.
The aim of Tuesday’s attacks on anonymous whistleblowers was partisan, but the downstream fallout could hurt all Americans regardless of party, they say.
In fact, the efforts to silence and intimidate even those people who have disclosed problems through approved channels could strike a mortal blow to whistleblowing, said Tom Devine, legal director of the Government Accountability Project, who has represented whistleblowers for decades and says he has never seen such open attacks on them.
“Now even anonymous whistleblowers will know that they are open season to be exposed and destroyed,” Devine said. “The threat could be fatal not only to them, but to the free flow of information essential for congressional oversight in our Constitution’s checks and balances.”
The questions about protecting the initial whistleblower’s identity and that of other possible witnesses had been swirling in Washington for weeks, and they hit a crescendo Tuesday during the House Intelligence Committee’s third day of public hearings in its impeachment inquiry.
Two Republicans on the committee, ranking member Devin Nunes of California and Jim Jordan of Ohio, led the charge in directly or indirectly seeking information about the whistleblower’s identity. They did so by asking leading questions of Lt. Col. Alexander Vindman, a Ukraine expert on the National Security Council.
In the process, they have imperiled an important practice grounded in law, said Irvin McCullough, a national security analyst with the Government Accountability Project.
Nunes, Jordan and company “have tarnished the name of a historic oversight institution,” McCullough said.
House Republicans’ tactics came against the backdrop of news reports indicating Vindman himself has expressed fears for his safety.
He is reportedly under 24-hour monitoring and the Army has offered to protect his family by housing them on a military base if necessary.
The implications for the initial intelligence community whistleblower are clear, McCullough said.
“These attempts to out an intelligence community employee could lead to violence against that employee and their family,” he said.
The lawmakers’ fishing queries came amid a broader effort by Trump himself and others in his camp to tar and tamper with officials who have said what they know about the Ukraine affair.
Trump, for his part, has called for the initial whistleblower to come forward and identify himself or herself. The president has also attempted to block potential administration witnesses from aiding the House inquiry. And he has tweeted criticisms of those, such as former Ambassador Marie Yovanovitch, who have testified before the House panel.
Most seriously, he has hinted that those who disclose problems should be executed.
“I’ve been representing whistleblowers for over 40 years, and the president’s campaign to expose the anonymous whistleblower is unprecedented,” said Devine of the Government Accountability Project.
At Tuesday’s hearing, California Democrat Adam B. Schiff, the committee’s chairman, cut off any questions about the whistleblower’s identity, with help from Vindman’s lawyer.
“I want to make sure there’s no effort to out the whistleblower through the use of these proceedings,” Schiff said.
But even such unsuccessful attempts to make public the identity of a whistleblower could make others who are considering disclosing wrongdoing think twice about it, transparency advocates say, and the result could be that problems affecting Americans’ lives could be left to fester undisclosed.
“Efforts to out the whistleblower are irresponsible, and incredibly chilling,” said Mandy Smithberger of the Project on Government Oversight. “Attacks on the whistleblower undermine confidence in protected channels put in place to make sure that concerns about sensitive information can be disclosed safely and responsibly.”
The channel at issue in this case is the process whereby employees at U.S. intelligence agencies can come forward — ostensibly without fear of reprisal — to tell Congress, rather than the press, about problems they perceive in classified programs.
Laurence Tribe, a professor of constitutional law at Harvard, tweeted Tuesday that the push by Nunes and Jordan to reveal the whistleblower’s identity was not only “disgraceful and dangerous” but also “gratuitous,” because the initial anonymous report has been subsequently confirmed in large measure by firsthand, on-the-record accounts.
The whistleblower’s identity, Tribe said, “has ZERO relevance to the impeachment inquiry. Exposing that identity could be lethal to this whistleblower and could deter others.”
Ron Wyden, a member of the Senate Intelligence Committee and co-chairman of the Senate Whistleblower Protection Caucus, told CQ Roll Call in a statement that Nunes is focusing on the whistleblower’s identity and planting questions about the person’s motives to divert the public’s attention from the allegations against the president.
“Congressman Nunes and his staff are shamefully trying to distract the public by attacking the credibility of a decorated military officer and putting a whistleblower at risk,” the Oregon Democrat said.
Nunes did not immediately reply to a request for comment.
Neither did five Republican members of the Senate Whistleblower Protection Caucus: Charles E. Grassley of Iowa, Ron Johnson of Wisconsin, Deb Fischer of Nebraska, Thom Tillis of North Carolina and Marsha Blackburn of Tennessee.