WASHINGTON — President Donald Trump’s push to uncover the identity of the U.S. intelligence whistleblower at the heart of the House Democrats' impeachment inquiry presents a major test for the federal laws designed to protect whistleblowers from retaliation, say legal analysts and whistleblower advocacy groups.
In 2014, Congress approved new whistleblower protection statutes for U.S. intelligence officials that were meant to bolster safeguards for those who come forward with allegations of government fraud and corruption. But those provisions never accounted for the possibility of the president being the subject of a whistleblower complaint, said David Colapinto, an attorney and co-founder of the National Whistleblower Center in Washington.
Under the Intelligence Authorization Act of 2014, the president is responsible for serving as the chief enforcer of whistleblower laws governing the U.S. intelligence agencies. Legal analysts say that presents a glaring conflict of interest now that Trump is the focus of a whistleblower complaint stemming from his efforts to have a foreign government investigate his Democratic rivals.
On Sunday, Mark Zaid, an attorney for the whistleblower whose complaint triggered the Trump impeachment inquiry, said via Twitter that a second whistleblower had come forward with "first hand" information to "support" the information reported by the first whistleblower. Zaid reiterated that second official "made a protected disclosure under the law and cannot be retaliated against."
“This is the real first big test in the public eye of the whistleblower statute for the intelligence community,” said Colapinto, who has represented whistleblowers for more than 30 years. “The president is in charge of ensuring that whistleblowers are not retaliated against … now we have a situation where a president is saying that the confidentiality should be exposed. That goes against the president’s duty to uphold the law under the whistleblower statute.”
In the days since an unclassified version of the original whistleblower’s complaint was made public, Trump has alluded to seeking retribution against the unnamed official, has routinely sought to discredit the whistleblower, describing the person as a “partisan” operative, and has repeatedly dismissed calls by lawmakers for the whistleblower to be protected as provided under the law.
“I don’t care,” Trump told reporters in the Oval Office on Wednesday when asked about concerns raised by some GOP lawmakers about protecting the identity of the whistleblower. “I think a whistleblower should be protected, if the whistleblower is legitimate.”
The whistleblower’s complaint, which focuses on Trump’s request for Ukraine to investigate his political rival, former Vice President Joe Biden, and his son Hunter, has been deemed “credible” and “of urgent concern” by Michael Atkinson, the inspector general for the U.S. intelligence community given the task of investigating whistleblower complaints. Despite the classification, Trump has repeatedly cast the complaint as a part of a “hoax,” even as he has since publicly called on Ukraine, and most recently China, to investigate Biden, his leading 2020 challenger.
Trump has argued that he is entitled to “confront” his accuser, but whistleblower attorneys and lawmakers on Capitol Hill have compared the president’s demands to identify the whistleblower, and those White House officials who provided information to that intelligence officer, to “witness intimidation” and say his effort to reveal the whistleblower could have a chilling effect beyond his presidency.
David Iglesias, a former U.S. attorney in New Mexico who specializes in national security law, said if the whistleblower’s identity is revealed or leaked by the Trump White House, it could keep future whistleblowers from coming forward to report misdeeds and misconduct throughout the federal government.
“If the president pays no penalty for unmasking the identity of the whistleblower, then I think that’s going to send more than a chilling effect, it’s going to be crippling,” said Iglesias, who now serves as director of the Wheaton College Center for Faith, Politics and Economics. “It’s going to send a message that you’re not protected.”
Another of the original whistleblower’s attorneys, Andrew Bakaj, a former CIA officer, tweeted that his client “is entitled to anonymity. Law and policy support this and the individual is not to be retaliated against. Doing so is a violation of federal law.”
Experts say it’s unclear how the law would be enforced against Trump should he reveal the whistleblower’s identity or seek to punish the individual.
Iglesias, who previously served as a U.S. military prosecutor, said if the House votes to impeach Trump, it could include any violations against the whistleblower laws in its articles of impeachment.
“There is a line where criticism may become witness tampering, which is a federal criminal offense,” said Iglesias.
Colapinto said any officials who aid Trump in revealing the identity of the whistleblower could face criminal penalties and possibly fines for violating the protective statutes.
“These are not without potential ramifications, and the fact that there are congressional impeachment proceedings going on, the federal obstruction of justice statutes could apply,” said Colapinto. “Anyone who gets involved in the orders to release this person’s identity against the law could face even more serious ramifications” that includes “potentially facing criminal charges and may spend time in jail.”
Congressional Democrats have stepped up their calls for the whistleblower to be protected as the House and Senate intelligence committees continue to negotiate an agreement to have the whistleblower testify directly before each panel without exposing the individual.
On Monday, Sen. Dianne Feinstein of California, the ranking Democrat on the Senate Judiciary Committee, issued a letter to the panel’s chairman, Sen. Lindsey Graham (R-S.C.), calling on the committee to ensure the protection of the whistleblower and other officials cited in the complaint.
“This committee should not sit idly by as the president threatens potential witnesses, whose testimony may be crucial to congressional investigations into credible allegations against him,” Feinstein wrote.
Graham and Trump’s other Republican allies have largely called for the release of the whistleblower’s identity, but Sen. Chuck Grassley (R-Iowa), who has long championed legislation to strengthen whistleblower protections, broke from his caucus on Tuesday, defending the whistleblower’s confidentiality and saying “this person appears to have followed the whistleblower protection laws and ought to be heard out and protected.”
“No one should be making judgments or pronouncements without hearing from the whistleblower first and carefully following up on the facts,” said Grassley, who is the chairman and co-founder of the Senate Whistleblower Protection Caucus. “Uninformed speculation wielded by politicians or media commentators as a partisan weapon is counterproductive and doesn’t serve the country.”