Note: this article, featuring our Legal Director Tom Devine, was originally published here.
Ukraine Controversy May Scare Off Would-Be Whistleblowers
Future complaints could either go the Edward Snowden route or remain under wraps.
Whoever blew the whistle about what President Donald Trump told the leader of Ukraine in a July phone call did so in the legally correct way, yet the allegation has been impeded and the intelligence official’s character and motivations publicly impugned by the president himself.
There are other officials working right now at places like the CIA and the National Security Agency who are ready to disclose problems that Congress needs to know about. But instead of going through official channels, experts say, these officials may be more likely to either give the information to a reporter or just shut up about it.
In other words, the Trump administration’s response to the latest whistleblower, who is now expected to testify before Congress, may make it more likely that the next one either follows the path of Edward Snowden and Chelsea Manning — potentially revealing key U.S. secrets — or simply does not divulge a serious concern.
Neither outcome is what Washington wanted two decades ago when it wrote the first of a series of laws to permit intelligence agency personnel to notify the proper congressional committees about critical information. But when the Trump administration buries a whistleblower’s complaint — and the president himself questions the person’s patriotism — that may be just what America gets, critics say.
“One of the reasons it’s important to have effective protected channels for whistleblowers is because otherwise the press becomes the only option for hoping those concerns will be addressed,” said Mandy Smithberger of the Project on Government Oversight.
The latest whistleblower alleged in a complaint to Michael Atkinson, the intelligence community’s inspector general, that Trump has sought to convince Ukrainian President Volodymyr Zelenskiy on at least one call July 25 to investigate Ukrainian business dealings of former Vice President Joe Biden’s son Hunter and Biden’s own role. No investigative authority in Ukraine or elsewhere has accused either Biden of impropriety.
Trump appeared to confirm on Sunday that he discussed with Zelenskiy probing Biden, a potential Democratic opponent next year. Trump also seemed to acknowledge that the fate of $250 million in U.S. military aid to Ukraine was part of the discussion, though on Monday he said he did not demand any quid pro quo.
The predicament of the new whistleblower — and, indeed, all whistleblowers — was laid bare Monday when Trump unleashed his latest attack on the unidentified person’s motives.
“Also, who is this so-called ‘whistleblower’ who doesn’t know the correct facts,” Trump tweeted. “Is he on our Country’s side. Where does he come from.”
Democrats are outraged by the Trump administration’s handling of the complaint and by the president’s apparent effort to use American military aid to goad a foreign leader to do something that could hurt the electoral prospects of the party’s leading contender for its 2020 presidential nomination.
The ensuing furor caused additional House Democrats to support an impeachment inquiry, and Speaker Nancy Pelosi announced Tuesday that the House would take steps to begin a formal inquiry.
Trump said Tuesday he would release on Wednesday the transcript of the call with Zelenskiy.
The Senate agreed by unanimous consent Tuesday to a nonbinding resolution urging the administration to make the complaint itself available to Congress, and the House was expected to vote Wednesday on a resolution disapproving of the administration’s interception of the complaint.
But it is not clear whether releasing the transcript or Congress’ rhetorical protests would soften, in the eyes of future whistleblowers, the twin blows of the White House blocking the complaint from Congress and smearing the person who filed it.
The process
The current framework for enabling intelligence community disclosures of classified allegations dates back to a 1998 law, which Congress updated in 2010 and 2014.
Intelligence agency employees must report wrongdoing that involves classified information — and that pertains to their work — through the inspector general of an agency like the CIA or via the director of national intelligence inspector general, a position now held by Atkinson.
What the public knows about the Ukraine-related disclosure, as in so many other past controversies, has come largely from media reports. That is not what Congress had in mind in creating a special process for learning about spy agency wrongdoing.
“What we don’t want is another situation like Edward Snowden, where information is released publicly and our national security is harmed,” said Iowa Republican Sen. Charles E. Grassley, chairman and a founder of the Whistleblower Protection Caucus.
If the IG finds the allegation credible and serious, it is sent to the director of national intelligence — a job now held in an acting capacity by Joseph Maguire — who must forward it within a week to the Intelligence committees. The IG, not the intelligence director, decides the merits of the complaint.
The latest incident is highly unusual because Maguire has not sent the report to Congress — a refusal that appears to have been directed by the Justice Department and White House.
Taking it to the Hill
There is another way for someone to legally divulge classified information about problems: Tell the congressional committees that oversee the spy agencies, said Oregon Democratic Sen. Ron Wyden, a member of the Intelligence Committee and vice chairman and a founder of the Whistleblower Protection Caucus.
The law authorizes the director of national intelligence to determine how that communication to Congress occurs, such as with regard to the handling of classified information, Wyden said in a statement. But the law does not allow the intelligence chief to decide whether the disclosure to lawmakers occurs.
“Any effort to block a whistleblower from coming directly to Congress would be contrary to the law, as is the refusal to transmit the inspector general’s information to Congress,” Wyden said.
Nonetheless, for whistleblowers to notify Congress, they must first file their complaint with officials with whom they work — and, typically, people they work for.
That is a powerful disincentive to disclose, given that many past disclosures were buried and the whistleblowers suffered greatly at work and at home, experts say. What’s more, those who have retaliated against whistleblowers are rarely punished, recent data shows.
The actions of some IGs have also cast doubt on whether their offices are trusted places for whistleblowers. Some IGs have allegedly blocked complaints, and others have been accused of retaliating.
Atkinson’s predecessor, Wayne Stone, while serving in an acting role, fired the official charged with outreach to intelligence whistleblowers and, experts say, gutted that office’s responsibilities.
Yet another concern among advocates: If a spy agency employee is retaliated against for making a disclosure, he or she has no recourse in courts for redress.
“It is indefensible that whistleblowers can be prosecuted under the Espionage Act, unless they give all their evidence of misconduct about presidential or other intelligence crimes to an institution working for the accused and then get its permission in order to alert Congress even about misconduct felonies or treason,” said Tom Devine, legal director of the Government Accountability Project.
Presidential disparagement
Trump’s comments about the latest whistleblower may dissuade people from filing allegations and make it more likely that classified information ends up in the press, critics say.
Jackie Garrick, who disclosed what she saw as misuse of funds in Pentagon suicide prevention programs in 2013, founded Whistleblowers of America, a group that provides support and advocacy.
“The tragedy of being a whistleblower today is that you have to choose between your own career security and protecting the public from harm,” Garrick said. “Going outside the organization is one of the few options that gives employees some leverage for accountability and justice.”