Breaking news today about the whistleblower

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I explained the whistleblower statute and related provisions of law in early November. Donald Trump and his thugs in Congress are openly violating the whistleblower law and engaging in unlawful witness intimidation.

Republicans are still doing it, it is a central feature of their raving and ranting to disrupt the impeachment hearings.

The Washington Post Fact Checker this morning took chairman Adam Schiff to task for his statement on Tuesday that the whistleblower has a “statutory right to remain anonymous.” Schiff’s claim that the whistleblower has a ‘statutory right’ to anonymity (excerpts):

Schiff, who is leading the impeachment inquiry as chairman of the House Intelligence Committee, has said at least twice that the whistleblower has a “statutory right” to anonymity.

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Federal laws and directives give cover to intelligence community members who report wrongdoing such as waste, fraud and abuse. For those protections to kick in, a whistleblower’s complaint must be based on a reasonable belief and be communicated through proper channels. In Trump’s case, the whistleblower filed his complaint Aug. 12 to the intelligence community’s inspector general, Michael Atkinson, as an “urgent concern” under federal law.

“I think the whistleblower did the right thing,” acting director of national intelligence Joseph Maguire testified to the House intelligence committee Sept. 26. “I think he followed the law every step of the way.”

“The Complainant followed the law in filing the urgent concern complaint, and the ICIG followed the law in transmitting the information to the Acting Director of National Intelligence on August 26, 2019,” Atkinson’s office said in a statementSept. 30.

Neither the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA) nor any related statutes have language guaranteeing anonymity for whistleblowers. These laws, in conjunction with Presidential Policy Directive 19and Intelligence Community Directive 120, provide protections from work-related retaliation. Intelligence community whistleblowers can’t be demoted, fired or reassigned for legally reporting their concerns; their pay can’t be cut; they can’t be sent in for psychiatric exams; and their security clearance level can’t be touched.

A key point I also made in my earlier post explaining the law:

Nothing in the ICWPA expressly protects the anonymity of a complainant, or provides sanctions for someone who discloses it,” Stephen I. Vladeck, a professor at the University of Texas School of Law and an expert on national security law, previously told The Fact Checker. “I think the harder question is whether disclosing a whistleblower’s identity could run afoul of other statutes, such as the federal criminal laws barring efforts to intimidate witnesses.”

Irvin McCullough, a national security analyst at the nonprofit Government Accountability Project, said the ICWPA “implies anonymity as a shield from other forms of workplace retaliation.”

“While not explicit in the statute, the obvious intent of the ICWPA was to create a channel through which intelligence employees could make disclosures of urgent concerns internally, securely, and anonymously (if they so choose),” McCullough wrote in an email. “That’s reinforced by the committee report’s recognition that whistleblowers could seek anonymous guidance from their home agency when making whistleblowing disclosures. The lack of whistleblowers’ right to enforce their confidentiality may be a loophole that Congress should correct.”

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Federal law expressly restricts the inspector general’s office from disclosing whistleblowers’ identities. It says that “the Inspector General shall not disclose the identity of the employee without the consent of the employee, unless the Inspector General determines that such disclosure is unavoidable during the course of the investigation or the disclosure is made to an official of the Department of Justice responsible for determining whether a prosecution should be undertaken.”

That appears to be the lone statutory restriction on disclosing a whistleblower’s identity, applicable only to the inspector general’s office. We found no court rulings on whether whistleblowers have a right to anonymity under the ICWPA or related statutes. Vladeck said it is nonetheless a best practice to avoid disclosure of the Ukraine whistleblower’s identity, “given the concerns about retaliation.” McCullough said, “We’ve stepped into bizarro-land when senior policymakers are trying to yank a CIA employee into the public spotlight in retaliation for making a whistleblowing complaint, especially when there are credible threats to that employee’s personal safety.”

In his Sept. 26 testimony, Maguire, the acting DNI, said, “The inspector general is properly protecting the complainant’s identity and will not permit the complainant to be subject to any retaliation or adverse consequences for communicating the complaint to the inspector general.” He also said, “I am absolutely, absolutely committed to protecting the anonymity of this individual, as well as making sure that Michael Atkinson, who is our ICIG, continues to be able to do his job unfettered.”

Applying a strict statutory construction standard, the Fact Checker awarded “three Pinocchios” to Rep. Schiff’s statement:

The case for Three: The ICWPA doesn’t include language granting whistleblowers a right to anonymity. Neither do other statutes, directives or court rulings that apply to the intelligence community. The argument that whistleblower-protection laws implicitly provide anonymity is more nuanced, and debatable, than what Schiff said in a nationally televised hearing. (And what good is a statutory right anyway if there’s no mechanism to enforce it?)

We found the case for Three Pinocchios more compelling. Schiff says the whistleblower has a “statutory right” to anonymity, and it apparently, in Schiff’s understanding, extends to congressional hearings and settings that don’t involve the inspector general. That’s debatable at best.

Republicans, who routinely criticize the Washington Post as “fake news,” nevertheless seized on this fact check today in their efforts to out the identity of the whistleblower and to retaliate against him or her.

During today’s hearing with Ambassador Gordon Sondland, Republican Rep. Mike Coway tried to undercut Rep. Adam Schiff‘s claims that the whistleblowers anonymity was protected by statute by submitting this fact check into the record and arguing against his statement on Tuesday. CNN provides its own fact check:

Fact check: Rep. Mike Conway tried to undercut Schiff’s claims that the whistleblower’s anonymity was protected by statute

During the hearing today, Rep. Mike Coway tried to undercut Rep. Adam Schiff‘s claims that the whistleblowers anonymity was protected by statute.

Under 2012 guidelines issued by President Obama, whistleblowers are protected from work-related retaliation, including “an appointment, promotion, or performance evaluation, or any other significant change in duties, responsibilities or working conditions.”

Facts First: It is true that no law explicitly prevents anyone, other than the Inspector General and their staff, from revealing the name of a whistleblower. But that doesn’t mean it’s legal to identify them, or that they are wholly unprotected. In 1998, Congress passed the Intelligence Community Whistleblower Protection Act, which formalized the process under which whistleblowers from the intelligence community could report complaints to Congress.

Revealing the whistleblower’s name does not clearly fall under one of these categories.

Robert Litt, former general counsel for the Office of the Director of National Intelligence under Obama, argues it could be considered retaliatory if the individual disclosing the name is also a member of the intelligence community.

But Litt notes that if members of Congress identified the whistleblower on the floor of Congress, they would be protected from criminal prosecution under the Speech or Debate Clause. Experts note that this situation is largely unprecedented, therefore the answer is not so cut and dried.

You can read more about the protections regarding anonymity that whistleblowers have here.

Which leads to today’s other breaking news: FBI seeks to interview the whistleblower:

The FBI has asked to interview the CIA whistleblower whose complaint touched off the Ukraine impeachment investigation, a source directly familiar with the matter told NBC News.

The whistleblower has not yet agreed to an interview, the source said.

The FBI request was first reported by Yahoo News, which said that some FBI officials were disturbed that the Justice Department declined to investigate the whistleblower’s complaint after a criminal referral was sent over from the inspector general of the Intelligence Community.

More about this: CIA General Counsel Made Criminal Referral to DOJ Based on Whistleblower Allegations Against Trump, and Justice Dept. rejected investigation of Trump phone call just weeks after it began examining the matter.

Justice Department officials said they examined the criminal referral based on the whistleblower’s complaint, and decided that there should be no investigation. Justice Department officials said they only examined the question of whether a campaign finance crime occurred, and they have never explained why they did not consider questions of bribery, extortion or other possible crimes.

Oh c’mon, we all know the answer: Trump’s fixer, Attorney General William “Coverup” Barr.

The whistleblower was not on the July 25 call between President Donald Trump and the Ukrainian president, and is not considered a first-hand witness to any of the key moments in the Ukraine saga. The whistleblower aggregated the concerns passed on by other colleagues on the National Security Council, and forwarded them in a written complaint to the inspector general for the intelligence community.

Because the whistleblower is not a first-hand witness, congressional Democrats have decided they do not need the person’s testimony and the ongoing impeachment hearings. Republicans, on the other hand, have urged that the whistleblower be brought in to testify, in what critics see as a bid to expose the person’s identity [and subject the whistleblower to retaliation.]

The whistleblower’s legal team says they have received death threats. If the whistleblower’s identity is outed, just what do you think Trump’s thugs are going to do with that information? This person’s life is genuinely in danger.




1 COMMENT

  1. How about this for contradicting oneself?
    “What the whistleblower says is hearsay and therefore useless.”
    “We need to hear testimony from the whistleblower.”
    I guess that’s a sign of desperation.

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