Note: this article, co-written by our Legal Director Tom Devine, was originally published here.
Trump and the Whistle-Blower He Hates
US whistle-blower law was explicitly designed to protect witnesses against mob boss retaliation.
Now that Republicans have decided no witnesses will be called in the impeachment trial of Donald Trump, it’s worth remembering that the president would not have been impeached in the first place if a whistle-blower hadn’t revealed that Trump pressured Ukraine’s president to investigate his 2020 electoral rival Joe Biden.
Proving Wilde’s dictum that no good deed goes unpunished, Republicans now reportedly want to haul the whistle-blower, a US government official, before a separate hearing of the Senate Intelligence Committee.
“I want to find out how all this crap got started,” Republican Senator Lindsey Graham said Sunday on Fox News’ Sunday Morning Futures, ignoring the right of whistle-blowers to remain anonymous.
Trump, of course, has been trying to destroy the whistle-blower since the latter’s revelations were first reported last September. First, he tried to smear the whistle-blower’s credibility, denouncing him as a Democrat and a spy who “hates Trump.” Then he demanded that the whistle-blower testify publicly, not hide behind a cloak of anonymity, a demand echoed by congressional Republicans. Finally, on December 27, the president tweeted and retweeted the alleged name of the whistle-blower.
In so doing, the president committed three felonies and behaved more like a vindictive mobster than an upholder of law and democracy.
Mobsters, in fact, are a big part of the reason US law and policy guarantees that whistle-blowers can remain anonymous—and that anyone who threatens that anonymity can go to prison.
In the 1970s and ’80s, as US whistle-blower laws and practices were being codified, the Department of Justice was working to break the power of the Gambino crime family and other key mobsters, including Joey “The Clown” Lombardo and James “Blackie” Cicavoli. To convict such figures in a court of law, prosecutors needed help from witnesses who knew the inner workings of their organizations. Which mobsters were bribing which police officers and judges? Which ones were ordering murders of rivals or perceived traitors?
Prosecutors had grown frustrated after seeing case after painstakingly built case dissolve when key witnesses either refused to testify for fear of retaliation or suddenly turned up dead before their court date.
So officials in the executive and legislative branches made sure that whistle-blowers and all other witnesses in federal investigations were protected against any threats or intimidation, both legally—in the Victim and Witness Protection Act of 1982—and practically, with a federal witness protection program.
With overwhelming, bipartisan support, Congress created three statutes reinforcing this commitment for all federal investigations—congressional, criminal, or civil: 18 U.S. Code 1505, 18 USC 1512, and 18 USC 1513(e). The associated felony penalties range from five to 20 years in prison. Trump’s attempted outing of the Ukraine whistle-blower violated all three statutes, thus exposing the president to potential criminal charges and imprisonment.
It’s easy to understand why solid majorities of lawmakers from both parties have long supported anonymity for whistle-blowers, and why last fall virtually every inspector general in the executive branch publicly condemned the idea that the president or his political allies would out the person who sounded the alarm on the Ukraine call. (Most US government agencies employ an inspector general who is responsible for investigating possible internal fraud and abuse.) Without the ability to obtain information confidentially from insiders, officials would have to fly blind in many investigations, with no help navigating through a maze of deceptions and cover-ups. After all, it is not only mobsters who punish insiders who reveal dirty laundry; so too do bureaucracies, public and private. Thus, when passing the landmark Sarbanes-Oxley anti-fraud law in 2010, Congress required that every US publicly traded corporation have an anonymous hotline for whistle-blowers to contact the board of directors.
President Trump is either ignorant or contemptuous of the need to protect anonymity for whistle-blowers. The same point applies to the Republicans who have tried to out the Ukraine whistle-blower, including Senator Rand Paul, who during the Senate impeachment trial last Wednesday sought to have Chief Justice John Roberts read aloud Paul’s question containing the alleged name of the whistle-blower. Justice Roberts refused. In the meantime, however, Trump and his fellow Republicans’ smears have triggered an avalanche of death threats against individuals who have been accused, accurately or not, of being the whistle-blower in question, with some social media postings depicting a head in a noose.
There should be no question that trying to terrorize a whistle-blower into silence qualifies as obstruction of justice. Such tactics are an abomination to the rule of law. They are the rule of thugs. They do not drain the swamp of corruption; they stock it with more alligators.
By refusing to condemn president Trump’s attacks on whistleblowing and the anonymity required to make it work, congressional Republicans are not only turning their backs on the constitutional standard for impeachment—high crimes and misdemeanors, but they are also betraying their party’s long record of support for whistle-blowers.
Over the past 20 years, Congress has passed 17 whistle-blower protection laws, all of them unanimously. There is no other significant public policy issue that enjoys such trans-ideological consensus. That’s understandable, because the free flow of information is the lifeblood for effective congressional oversight, equally essential to both political parties. Now is not the time to repudiate this legacy or abandon the whistle-blowers it protects.
Whistle-blowers should be thanked and honored, not vilified and hunted. Protecting their anonymity and safety should be recognized as common sense and good governance, not as a partisan disagreement. President Trump has bullied congressional Republicans into forgetting all this. Now, they are rewarding him with a show trial without witnesses and an acquittal without innocence. In the process, they are also making it that much less likely that a whistle-blower will come forward if this or any other president abuses their power in the future.