Trump Whistleblower's Anonymity Resurfaces as Issue in Senate Impeachment Trial

A former director of the intelligence whistleblower program has called the Intelligence Community Whistleblower Protection Act of 1998 the "worst-named statute” ever passed by Congress

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Months after the intelligence community official who last summer submitted to the director of national intelligence an anonymous report alleging possible wrongdoing on the part of President Donald Trump in his dealings with Ukraine, Republican lawmakers are still trying to make that official's name public.

Republican Sen. Rand Paul, of Kentucky and strongly opposed to Trump's impeachment, submitted a question on Thursday for Chief Justice John Roberts to read aloud in the televised Senate trial. The question included the purported name of the protected whistleblower who initially submitted a report on the president's alleged efforts to pressure Ukraine into announcing corruption investigations that benefit Trump's 2020 reelection bid.

Roberts refused to read it. He has told senators that he would not read aloud questions that identify the whistleblower. Paul immediately exited the chamber, posted his question on Twitter and repeated it out loud for reporters.

When asked about his colleague's expected push to name the whistleblower, GOP Sen. Mike Braun of Indiana told Fox News on Thursday that "whether he'll push hard on that or not it at least is highlighting that the whistleblower in its origination in the cabal of individuals that were involved with it, you know, would be up for discussion," referring to allegations from Republicans that somehow the anonymous official coordinated with House Democrats in filing the complaint alleging possible presidential abuse of power.

Paul and other Republican lawmakers have repeatedly said they think the whistleblower coordinated with Democrats in a politically motivated effort against Trump and have called on that person to testify publicly.

(For those who are reading this on our app, read the whistleblower's complaint here.)

Democrats, including lead House impeachment manager Adam Schiff of California, have said they did not coordinate with the person who filed the report and do not know who the person is. They have also admonished those lawmakers who have called for publicly exposing the official's identity, asserting the importance of protecting those who seek to report possible wrongdoings and coverups without facing retaliation in the workplace or threats to their personal safety. They say that since other witnesses have largely corroborated the whistleblower's account it's not necessary for that person to testify.

“We protect whistleblowers,” Schiff said on Thursday before entering the chamber for the second of two days of the trial's question-and-answer portion. “We rely on people of good conscience to report misconduct." The only reason for exposing the whistleblower at the heart of Trump’s impeachment trial would be to satisfy Trump’s desire for retribution, he said.

Some Republicans, including Senate Majority Leader Mitch McConnell, R-Ky., have discouraged colleagues from disclosing the person's identity.

Since news broke of the conversation between Trump and his Ukrainian counterpart that became the basis for impeachment, the president himself repeatedly has called for the public naming of the anonymous CIA official behind the initial complaint that led to the House’s investigation. 

“We must determine the Whistleblower’s identity to determine WHY this was done to the USA,” Trump tweeted in October.

Whether or not Trump knew, or believed he knew, that official’s name was not fully clear, however, as he stopped short of unmasking the person himself — until last month, when he retweeted an unverified user’s post linking to an article that printed the alleged name of the whistleblower.

Whistleblowers — a category that broadly includes anyone who reports to have observed corruption, abuse, criminal activity or other improprieties committed within a workplace — have certain protections under federal law. But questions about what, exactly, those protections entail, and whether they include safeguards for preserving individual anonymity, often don’t yield simple answers, experts say.

According to attorney Dan Meyer, a former director of the intelligence community whistleblower program, the first qualifier is the whistleblower’s employment status; that is, is the person a civilian employee of a corporation or non-government organization? Private sector whistleblowers usually have greater legal protections than those who work for the government — and among government employees, those who work for intelligence agencies like the CIA usually have relatively few protections compared to those working in non-intelligence “essentially because there is greater threat to national security, potentially, if information were to get out,” Meyer said.

An article published in the New York Times disclosed that the Trump Ukraine whistleblower was an analyst with the Central Intelligence Agency. They, NBC News and other mainstream outlets are not printing the alleged whistleblower's name.

Who's Who in the Trump-Ukraine Affair

President Donald Trump faces a formal impeachment inquiry led in the Democratic-controlled House after he asked the newly elected Ukrainian president to investigate one of his chief political rivals, former Vice President Joe Biden.

Credit: Noreen O'Donnell, Nelson Hsu, Nina Lin/NBC

But when a news outlet, or a regular individual, or the president of the United States, does post an article — or a tweet, or a gif, or a meme, or anything — that did identify this whistleblower by name, would that constitute a violation of federal law? Meyer said that is unlikely, as there is “no overarching protection for the whistleblower’s identity under federal law.”

Similarly, former general counsel for the Office of the Director of National Intelligence Robert Litt said in an interview with NPR that “[i]f Trump thinks he knows the name, he can come out and say it, and he’s probably as protected as anyone is.”

So far, the alleged whistleblower has been named by various conservative media outlets. The president's son, Donald Trump Jr., has tweeted the name, and GOP Rep. Louie Gohmert of Texas previously said the name of the person during a House Judiciary Committee on impeachment last month, NBC News reported.

Federal laws regarding whistleblower protections, including those set forth by the Intelligence Community Whistleblower Protection Act of 1998, deal primarily with protections from potential acts of retaliation designed to punish, or intimidate, a worker for calling attention to perceived wrongdoing. The act of publicly identifying — i.e., unmasking — a whistleblower is not considered by definition to be retaliatory and thus isn’t explicitly against the law (unless the person is a covert CIA agent).

So what does the 1998 law do? According to Meyer, not much — he called it “the worst-named statute” ever passed by Congress. However, as Litt pointed out, if the naming of a previously anonymous whistleblower “causes a chain reaction leading to a demotion or firing, or if the whistleblower is threatened with violence or is physically harmed," then the situation could change "drastically."

Andrew Bakaj, the whistleblower's lead lawyer, has said that disclosure of his client's name would deter future whistleblowers, and he has threatened legal action against anyone who reveals the name. In a statement in November, the whistleblower's lawyers said "identifying any suspected name ... will place that individual and their family at risk of serious harm."

The CIA has taken security measures to protect the analyst, who has continued to work at agency headquarters on Russia and Ukraine issues, The Washington Post reported.

For instance, if a whistleblower’s colleagues or supervisors turned against them as a consequence of their being identified, it could be argued that the act created a hostile work environment, from which that person would be federally protected.

Furthermore, the lack of federal law specifically protecting a whistleblower’s anonymity does not preclude civil legal consequences for someone who unmasks or publicly identifies that person.

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