Trump's Whistleblower Threat: Law-Breaking Or Empty Promise?

In 2019, a whistleblower filed a complaint about then-US President Donald Trump's dealings with Ukraine, triggering an impeachment inquiry. Trump and his allies responded by attacking the whistleblower and pushing for their identification. While some argue that Trump broke the law by encouraging news organizations to reveal the whistleblower's name, others claim that the president is responsible for enforcing whistleblower protections and that no federal law explicitly prohibits him from publicly identifying a whistleblower. This incident has exposed weaknesses in federal whistleblowing laws and raised concerns about retaliation against those who expose wrongdoing.

Trump's response to the whistleblower could have damaged the system

The whistleblower complaint against Donald Trump, which triggered an impeachment inquiry, was filed by a staffer who followed the formal channels. The whistleblower lodged a complaint with an internal government watchdog about a phone call between Trump and Ukraine's President Volodymyr Zelenskiy. During the call, Trump pressed Zelenskiy to investigate a political rival, former Vice President Joe Biden, and his son Hunter Biden.

The Inspector General Act of 1978 and the Intelligence Community Whistleblower Protection Act of 1998 contain specific provisions for protecting the identity of whistleblowers. The former explicitly forbids the identification of a whistleblower by an inspector general unless it is unavoidable during the investigation. The latter requires the inspector general to keep the whistleblower's name confidential, but it does not stop a member of Congress, the president, or anyone else from identifying the whistleblower.

While there is no federal criminal statute prohibiting the act of unmasking a whistleblower, legal experts argue that naming the whistleblower could be considered retaliation and could trigger further protections for the whistleblower. Additionally, if naming the whistleblower causes a chain reaction leading to demotion or firing, or if the whistleblower is threatened with violence, the legal consequences could be more severe.

The impact of Trump's aggressive response goes beyond the Ukraine scandal and the impeachment inquiry. Experts and whistleblowers warn that his handling of the situation will have a chilling effect on others who want to come forward about wrongdoing. The whole purpose of whistleblower laws is to allow people to speak out about fraud or crimes within their jobs without fear of retribution. By targeting the whistleblower, Trump undermines this purpose and discourages others from coming forward.

The whistleblower's identity and legal protections

The whistleblower in the Trump impeachment inquiry filed a complaint about the former president's dealings with Ukrainian president Volodymyr Zelensky. Trump and his allies pushed for the whistleblower to be identified, and several of his supporters and inner circle tweeted what they claimed was the whistleblower's name.

There are more than 50 whistleblower laws in the US, and legal experts believe that Trump's aggressive strategy risked flouting these laws and eroding the system designed to keep politicians in check.

The Inspector General Act of 1978 empowers federal agencies' watchdogs to investigate tips about potential wrongdoing and lays out protections, including confidentiality. It forbids the identification of a whistleblower by an inspector general unless it is "unavoidable during the course of the investigation". It also forbids other government employees from taking action that could be viewed as a "reprisal".

The Intelligence Community Whistleblower Protection Act, passed in 1998, the Intelligence Authorization Act for Fiscal Year 2010, and subsequent presidential directives also contain specific provisions for persons who work with classified information, including protecting their identity.

The Whistleblower Protection Act (WPA) ensures that employees who engage in protected disclosures are free from fear of reprisal for their disclosures. Whistleblower retaliation can include taking or failing to take a personnel action, or threatening to do so, because of an employee's protected disclosure or protected activity.

The law does not specify to whom a disclosure must be made for it to be protected. However, classified disclosures must be handled in accordance with the law.

Offices of Inspectors General are prohibited from disclosing an employee's identity without the employee's consent unless the OIG determines the disclosure is unavoidable or is compelled by a court order.

Trump's attempts to reveal the whistleblower's identity

In the wake of the impeachment inquiry against him, former U.S. President Donald Trump and his allies pushed for the whistleblower to be identified. Trump's son, Donald Trump Jr., and Republican Senator Rand Paul from Kentucky, tweeted a link to an article from a right-wing news outlet that claimed to have identified the whistleblower.

Trump's supporters, including some of his most prominent inner-circle members, tweeted what they claimed was the whistleblower's name. The whistleblower's lawyers said that such efforts to identify their client would put "that individual and their family at risk of serious harm" and would also deter future whistleblowers.

The whistleblower's lawyers have told congressional investigators that their client is only interested in answering written questions.

The whistleblower's complaint and the subsequent investigation

On 12 August 2019, a whistleblower lodged a complaint with an internal government watchdog about a phone call between Trump and Ukraine's new president, Volodymyr Zelensky, on 25 July. During the call, Trump pressed Zelensky to investigate a political rival, former Vice President Joe Biden, and his son, Hunter Biden.

The whistleblower filed the report with Intelligence Community Inspector General Michael Atkinson, as required under the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA). Atkinson determined the complaint was credible and involved an urgent concern, and shared it with Acting Director of National Intelligence Joseph Maguire on 26 August. The ICWPA requires the director to report any complaint to Congressional intelligence committees within seven days. However, Maguire consulted with the White House and sent the report to prescribed members of Congress on 25 September. Maguire found the complaint did not meet the legal definition of "urgent concern". Nonetheless, it prompted a House of Representatives investigation into whether Trump committed "high crimes and misdemeanours" warranting impeachment.

John Cohen, a former official in the U.S. Department of Homeland Security, stated that the whistleblower followed the procedures laid out in the ICWPA, and much of the whistleblower's complaint has been corroborated.

Trump and his allies have publicly attacked the whistleblower, attempting to discredit them and pushing for their identity to be revealed. However, legal experts argue that this could be a form of retaliation and flout legal protections for whistleblowers, such as anonymity. While there is no federal criminal statute explicitly prohibiting the president from revealing a whistleblower's identity, doing so could trigger an article of impeachment or be considered obstruction of justice.

The legality of Trump's actions

Firstly, it is important to understand that there are multiple whistleblower protection laws in the US, and the specific law in question can impact the legality of Trump's actions. The primary law in this case is the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA). This law outlines procedures for intelligence community whistleblowers to report allegations of fraud, waste, or violations of law while providing some protections.

One key protection afforded by the ICWPA is anonymity. The law states that the inspector general should not disclose the whistleblower's identity without their consent unless it is determined that such disclosure is unavoidable during the investigation. However, this protection is limited once the complaint leaves the inspector general's hands, and there is no explicit prohibition on the President, members of Congress, or other government officials from disclosing the whistleblower's identity.

Despite this lack of explicit prohibition, legal experts argue that disclosing the whistleblower's identity could still constitute unlawful retaliation. The ICWPA and other laws, such as the Inspector General Act of 1978, include anti-reprisal provisions that forbid actions that could be viewed as retaliation for whistleblowing. While these provisions are subject to multiple interpretations and do not explicitly mention the disclosure of a whistleblower's identity, some experts argue that naming the whistleblower could be considered a form of reprisal, particularly if it leads to further negative consequences for the whistleblower.

Additionally, there is a question of the President's role in enforcing whistleblower protection laws. The ICWPA and other laws place the burden on the President to enforce these protections. This unique aspect of whistleblower laws related to national security was intended to protect critical secrets. However, it also gives the President significant influence over the process and could potentially allow for the intimidation or suppression of whistleblowers.

In the case of Trump, his aggressive response to the whistleblower, including calling for the whistleblower to be identified and publicly attacking their credibility, could be seen as a form of retaliation or obstruction of justice. Some experts argue that such actions could lead to an article of impeachment or even potentially be considered a violation of criminal law.

However, it is important to note that the legal consequences of Trump's actions are not clear-cut. Some legal experts argue that the President is not legally prohibited from publicly identifying a whistleblower and that doing so may not violate any federal criminal statutes. The interpretation and enforcement of whistleblower protection laws in this context are complex and subject to debate.

In conclusion, while there are legal protections in place for whistleblowers, the actions of President Trump and his administration regarding the Ukraine whistleblower have highlighted potential loopholes and deficiencies in these laws. The interpretation of these laws and the enforcement of protections, particularly in the context of national security and the President's role, remain contentious issues.

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