Note: this article, featuring our Legal Director Tom Devine, was originally published here.
President Blasts Media For Not Reporting Name of Whistleblower
WASHINGTON President Donald Trump is blasting the media for not reporting the name of a person who has been identified in conservative circles as the whistleblower who spurred the impeachment inquiry. Yet Trump has carefully avoided using the name himself.
Exposing whistleblowers can be dicey, even for a president. For one thing, it could be a violation of federal law to identify the whistleblower. While theres little chance Trump could face charges, revealing the name could give Democrats more impeachment fodder. It could also prompt a backlash among some Senate Republicans who have long defended whistleblowers.
And, despite wanting the name to be disclosed, Trump sees some benefits to keeping it secret. The anonymity makes it easier for Trump to undermine the credibility of the person behind the complaint as well as the complaint itself, according to three officials and Republicans close to the White House not authorized to publicly discuss private conversations. It also allows him to bash the media for supposedly protecting the whistleblower.
In recent weeks, a name has circulated in conservative media of a man said to be the whistleblower. The presidents son, Donald Trump Jr., on Wednesday tweeted a link to a story on the Breitbart website that used the name. He also included the name in his tweet.
U.S. whistleblower laws exist to protect the identity and careers of people who bring forward accusations of wrongdoing by government officials. Lawmakers in both parties have historically backed those protections. The Associated Press typically does not reveal the identity of whistleblowers.
The identity of the whistleblower is almost a moot point: Much of the unnamed persons August complaint about Trumps July 25 phone call with Ukrainian President Volodymyr Zelenskiy has been corroborated and expanded upon by officials on-the-record, congressional testimony and the reconstructed, partial transcript of the call released by the White House.
In a statement shortly after Trump Jr.s tweet, the whistleblowers attorneys warned that Identifying any suspected name for the whistleblower will place that individual and their family at risk of serious harm.
The statement by Andrew P. Bakaj and Mark S. Zaid said that publication or promotion of a name shows the desperation to deflect from the substance of the whistleblower complaint. It will not relieve the President of the need to address the substantive allegations, all of which have been substantially proven to be true.
A number of Trump allies have counseled the president not to unveil the whistleblowers identity. So in recent days Trump has shifted to a new tactic, denouncing the media for allegedly protecting the whistleblower by refusing to identify the person, allowing him to charge that the media is in cahoots with Democrats and the deep state Trump opponents in the government.
The strategy is reminiscent of the one Trump used during special counsel Robert Muellers Russia probe, during which he derided the so-called deep state investigators for allegedly plotting to bring down a duly elected president.
Trump, on Twitter and while talking to reporters, relentlessly painted then-FBI director James Comey, agent Peter Strzok and FBI lawyer Lisa Page as corrupt and conspiratorial. Though theres no solid evidence that the Russia probe suffered from any improper bias at its origin, Page and Strzok, in a series of text messages, revealed their dislike of Trump, which the president pointed to as proof of a plot against him.
With help from some allies, including Sen. Rand Paul at a Kentucky rally on Monday, Trump has moved to create a similar dynamic with the whistleblower. Without providing evidence, Trump has painted the whistleblower as a liberal Never Trumper and held up the persons anonymity essential for protection as some sort of nefarious proof of a conspiracy with Democrats.
Much like his scattershot efforts to muddle the narrative of the Mueller probe, often by questioning the integrity and process of the investigation itself rather than the facts, Trump has been looking to plant the seed of doubt about the Ukraine matter with both his base and the GOP senators who could decide his fate in an impeachment trial, according to the officials and Republicans.
But if he identified the supposed whistleblower, Trump could risk antagonizing some of those same senators, who believe whistleblowers are important for rooting out corruption. Advocates for whistleblowers warn that stripping anonymity from the person who made the Ukraine complaint would make people across the government more reluctant to speak up about wrongdoing.
In the context of an investigation, someone who names or retaliates against a whistleblower could be prosecuted for obstructing an investigation or harassing a witness, said Tom Devine, legal director for the Government Accountability Project.
But whistleblowers in the intelligence community, like the one who reported the Ukraine call, lack many of the protections provided to their counterparts elsewhere in the government. There are some rights on paper, but in reality they are extremely weak, Devine said.
In other parts of the government, whistleblowers can take claims they have been retaliated against to independent administrative agencies and, potentially, federal courts. In the intelligence agencies, complaints are handled internally.
The way you do that is by going back to the agency that retaliated against you to ask them to change their minds, Devine said. There is a right of appeal to the inspector general, whose work can be reviewed a panel of auditors he appoints, he said.
Stephen Kohn, the chairman of the board of the National Whistleblower Center, said its troubling that prospects for protecting the whistleblower really depend on Trump.
The only guarantee here is to hope the president does his job and prevents retaliation against him in the first place, Kohn said.