Donald Trump and his allies have publicly attacked a whistleblower who filed a complaint about the president’s dealings with his Ukrainian counterpart, Volodymyr Zelenskiy, and triggered a chain of events that led to an impeachment inquiry of the president.
But experts believe that the aggressive strategy is a highly risky one, both in terms of flirting with breaking laws around protecting whistleblowers but also in potentially doing lasting damage to a whistleblowing system set up to keep the powerful in check and provide a safe way of exposing the wrongdoing of America’s politicians and government officials.
Not that Trump and his allies have shown much concern over such fears.
In addition to going after the credibility of this whistleblower – whose account has been repeatedly corroborated by witnesses in closed-door congressional hearings – Trump and his allies have pushed for the whistleblower to be identified. Indeed several of his most prominent supporters and inner circle have tweeted what they say is the whistleblower’s name.
The whistleblower’s defenders, as well as experts in government accountability, contend that naming the person would flout legal protections, such as anonymity, for government employees who come forward about alleged wrongdoing.
One law governing intelligence whistleblowers, the Inspector General Act of 1978, empowers federal agencies’ respective watchdogs (called inspectors general), to investigate tips about potential wrongdoing and lays out protections, including confidentiality. It explicitly forbids the identification of a whistleblower by an inspector general, unless “… the Inspector General determines such disclosure is unavoidable during the course of the investigation [of the whistleblower’s allegations]”.
It also forbids other government employees – presumably including a president – from taking action that could be viewed as a “reprisal” for their whistleblowing.
Other laws exist too, especially for intelligence workers. The Intelligence Community Whistleblower Protection Act, passed in 1998, the Intelligence Authorization Act for Fiscal Year 2010 and subsequent presidential directives also contain specifics for persons who work with classified information, including protecting their identity.
“Anti-reprisal is sort of the core concept that’s across many of these provisions,” explained John Kostyack, the National Whistleblower Center’s executive director, saying an underlying principle “is the idea of anonymity or confidentiality”.
But the provisions that should protect intelligence whistleblowers “are general and subject to multiple interpretations”, the center notes. The inspector general is mostly barred from releasing a whistleblower’s name but other government officials are not explicitly prohibited from doing so. These federal laws also only govern federal employees’ treatment of whistleblowers. The media and private persons are not barred from revealing whistleblowers’ names, though news organizations overwhelmingly refrain from doing so.
If revealing a whistleblower’s identity is a form of retaliation, however, then there are “serious legal problems” for people who do name them.
“Considering all of the threats that are being made against the whistleblower,” Kostyack said, “naming the whistleblower is a form of reprisal.”
Experts agree the whistleblower in the Ukraine scandal has more reason than most to believe their anonymity is protected by the law: their account has been subsequently corroborated by multiple other witnesses closer to events. That means any naming of the whistleblower could more easily be framed as retaliation.
“With this whistleblower right now, this person’s testimony isn’t even necessary at this point, so there’s no reason whatsoever for the [identity] of this person to be revealed,” said Louis Clark, executive director and CEO of the Government Accountability Project.
Reuben Guttmann, a veteran whistleblower attorney, voiced similar sentiments.
“In a situation where the inspector general finds better information than the whistleblower has, then the whistleblower’s testimony or information becomes irrelevant,” Guttman said.
“It appears to me that this whistleblower’s not going to be needed,” he said. “What you’re seeing is essentially retaliation against the whistleblower.”
Several former federal officials told NPR that Trump naming a whistleblower wouldn’t be a criminal act. But Guttman contends that naming a whistleblower could lead to an article of impeachment or theoretically, be considered breaking criminal law, if naming the whistleblower was meant to obstruct justice.
But the impact of the flurry of criticism and online identification of the whistleblower has implications far beyond the Ukraine scandal and the current impeachment saga. Experts and whistleblowers said Trump and his supporters’ handling of the situation will have a chilling effect on others who want to come forward about wrongdoing.
“Whistleblowers are a check and balance of last resort,” said Sherron Watkins, who blew the whistle on accounting fraud at Enron. “To me, when we seek out the messenger, the whistleblower, we’re doing the wrong thing.
“The more we persecute them, ruin their lives, let their name [be published],” she continued, “It is concerning to me we will wipe away this check and balance of last resort.”
Frank Serpico, who memorably exposed corruption in the New York police department, offered a bleak view of the situation.
“Whistleblowers will always be treated the way they are,” he continued. “They do this because, as a whole, whatever the organization is, they want to discourage it – because it affects whatever shenanigans they’ve got going on.
“It’s always been that way,” he said.
