The most recent summary of whistleblower protections for the Intelligence Community (“IC”) can be found in this Congressional Research Service Report, Intelligence Community Whistleblower Protections (Updated September 23, 2019).
Members of the Intelligence Community do not share the same robust protection as other federal employees against retaliation for having made a whistleblower complaint (excerpt, pp. 4-5):
The IAA for FY2010 (P.L. 111-259), included the first general provisions for protection of whistleblowers as part of legislation that established the Office of the Inspector General of the Intelligence Community (OIGIC), headed by the Intelligence Community Inspector General (ICIG). Section 405(a)(1) of the IAA for FY2010 added a new Section, 103H, to the National Security Act of 1947, which was codified as 50 U.S.C. §3033. Section 3033 permits lawful disclosures to the ICIG and echoes the [Intelligence Community Whistleblower Protection Act of 1998 (ICWPA)] ICWPA’s provision protecting the whistleblower’s identity from disclosure, but otherwise lacks the specificity of later whistleblower protection legislation and directives (emphasis added):
The Inspector General [of the Intelligence Community] is authorized to receive and investigate … complaints or information from any person concerning the existence of an activity within the authorities and responsibilities of the Director of National Intelligence constituting a violation of laws, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to the public health and safety. Once such complaint or information has been received from an employee of the intelligence community.12
… No action constituting a reprisal, or threat of reprisal, for making such complaint or disclosing such information to the Inspector General may be taken by any employee in a position to take such actions, unless the complaint was made or the information was disclosed with the knowledge that it was false or with willful disregard for its truth or falsity.13
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Section 425(d) of the IAA for FY2010 also amended the Central Intelligence Agency Act of 1949 to clarify existing protections against reprisals involving CIA employees who make lawful disclosures to the CIA Inspector General.16
Footnote 10 at page 3 explains:
10. Section 7(b) of the Inspector General Act of 1978 (5 U.S.C. App.) provides for the identity of an employee making a complaint, such as a whistleblower, to remain undisclosed to the extent practicable (emphasis added): The Inspector General shall not, after receipt of a complaint or information from an employee, disclose the identity of the employee without the consent of the employee, unless the Inspector General determines such disclosure is unavoidable during the course of the investigation.
With this in mind, Donald Trump and his gang of thugs in Congress are going full court press this week to disclose the identity of the Ukraine whistleblower in order to illegally retaliate against the whistleblower and engage in unlawful witness intimidation. More on this below.
But first, keep in mind that the whistleblower followed the law in making a complaint to the Inspector General, who found the complaint “credible” under the law, and that the whistleblower acted in good faith. The IG reported the complaint to Congress.
Senator Chuck Grassley (R-IA) has said the Whistleblower Followed the Law and Should Be Heard:
Iowa Republican senator Chuck Grassley issued the following statement today:
“This person appears to have followed the whistleblower protection laws and ought to be heard out and protected. We should always work to respect whistleblowers’ requests for confidentiality. Any further media reports on the whistleblower’s identity don’t serve the public interest—even if the conflict sells more papers or attracts clicks.
“No one should be making judgments or pronouncements without hearing from the whistleblower first and carefully following up on the facts. Uninformed speculation wielded by politicians or media commentators as a partisan weapon is counterproductive and doesn’t serve the country.
“When it comes to whether someone qualifies as a whistleblower, the distinctions being drawn between first- and second-hand knowledge aren’t legal ones. It’s just not part of whistleblower protection law or any agency policy. Complaints based on second-hand information should not be rejected out of hand, but they do require additional leg work to get at the facts and evaluate the claim’s credibility.”
UPDATE: Grassley Defends Whistleblower Again After Trump Renews Attacks: Sen. Chuck Grassley (R-IA) reiterated his stance that whistleblowers should be protected in light of President Trump’s call for a public whistleblower testimony … and directly responded to the President, who renewed his crusade over the weekend to expose the whistleblower’s identity.
“The law protects the whistleblower,” Grassley told reporters, according to CNN. “I’m an advocate for whistleblowing and passed all these whistleblower protection laws, so I can only say we have to go by what the law says.”
Grassley added that he wants “maximum protection for whistleblowers” and repeated his claim that he “has advocated for whistleblowers for a long period of time, including this whistleblower.”
Weeks before the whistleblower’s complaint became public, the CIA’s top lawyer made what she considered to be a criminal referral to the Justice Department about the whistleblower’s allegations that President Donald Trump abused his office in pressuring the Ukrainian president, U.S. officials familiar with the matter tell NBC News.
The move by the CIA’s general counsel, Trump appointee Courtney Simmons Elwood, meant she and other senior officials had concluded a potential crime had been committed, raising more questions about why the Justice Department later declined to open an investigation.
The phone call that Elwood considered to be a criminal referral is in addition to the referral later received as a letter from the Inspector General for the Intelligence Community regarding the whistleblower complaint.
In addition, Trump’s “Injustice” Department buried the whistleblower complaint about President Donald Trump’s call with the Ukrainian president by failing to refer the matter to the Federal Election Commission (FEC). New Evidence Hints at Another Justice Department Coverup:
In August, Justice Department officials decided that rather than turn the whistleblower complaint over to Congress, department lawyers would assess the allegations against Trump, including evidence that the president had broken campaign finance law. After what news reports described as a cursory review, the department declined to launch a criminal investigation, finding that Trump had not asked for a “thing of value.” This was a stretch; campaign finance experts generally agree that opposition research damaging to an opponent, which campaigns can pay a lot of money for, is clearly valuable. The FEC also considers it a “thing of value.” Nevertheless, the department lawyers declared the matter case closed.
But under a 1978 memorandum of understanding between the department and the FEC—which, like Justice is authorized to penalize campaign finance violations—the complaint should have been passed onto the FEC even if the department declined to launch a criminal investigation, so the election watchdog can determine whether a civil penalty is called for.
There is also a second whistleblower who corroborated the first whistleblower. Second Whistleblower Has Given Evidence to IG on Ukraine Call:
A second whistleblower with first-hand knowledge of the allegations that sparked the impeachment inquiry into President Donald Trump has already given evidence to Michael Atkinson, the head of the intelligence community’s internal watchdog office.
Mark Zaid, the attorney for the first whistleblower, confirmed to The Daily Beast, that he represents both people.
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The attorney later told CNN’s Jake Tapper that his client has “not filed own complaint” and does not need to, and Zaid confirmed that his client has “first-hand knowledge that supports the first whistleblower.”
On Sunday, Zaid confirmed on Twitter that his new client had first-hand knowledge of the call. “They also made a protected disclosure under the law and cannot be retaliated against,” he wrote on Twitter. “This WBer has first hand knowledge.”
Documentary evidence, firsthand witness accounts and even statements by Donald Trump himself — admissions against interest — have emerged that bolster the facts outlined in the whistleblower complaint. Mounting evidence buttresses claims in whistleblower complaint.
The Washington Post’s fact checker, Glenn Kessler, found that a line-by-line review of the whistleblower complaint shows that virtually every key element has been subsequently confirmed as correct. Trump’s very inaccurate claim that the whistleblower is ‘very inaccurate’.
Democrats were prepared to take extraordinary steps to preserve the whistleblower’s identity for his or her testimony, but they have grown cold to the idea of exposing the whistleblower to additional scrutiny after several witnesses have testified how Trump leveraged access and military aid to secure a promise from Ukraine to launch investigations that could help his 2020 reelection bid. Democrats say whistleblower’s testimony is unnecessary as other witnesses come forward:
I think it’s quite clear we have a surfeit of evidence that corroborates in full every aspect of what happened and the policy they were pursuing,” said Rep. Gerald E. Connolly (D-Va.), a member of the Oversight and Foreign Affairs committees.
“The president’s allies would like nothing better than to help the president out this whistleblower. Our committee will not be a part of that,” Intelligence Chairman Adam Schiff (D-Calif.) said earlier in the week. “They have the right to remain anonymous. They certainly should not be subject to these kinds of vicious attacks.”
“Because we have corroborated everything the whistleblower has alleged, having the whistleblower testify would put the whistleblower’s life in serious jeopardy,” Rep. Eric Swalwell (D-Calif.), a member of the Intelligence Committee, told CNN this week. “And so the question is, … is that person’s life worth less than being redundant? And our position right now is that it’s not.”
The whistleblower’s attorneys stated in an op-ed, “As each allegation in the complaint is substantiated by new witnesses, the president and his supporters remain fanatically devoted to bringing our client into the spotlight. But the reality is that the identity of the whistleblower is irrelevant.” We represent the whistleblower. Their identity is no longer relevant.
But Donald Trump and his thugs in Congress are openly violating the whistleblower laws to engage in unlawful retaliation against the whistleblower and unlawful witness intimidation. The Daily Beast reported, Nunes Aide Is Leaking the Ukraine Whistleblower’s Name, Sources Say:
A top aide to Rep. Devin Nunes has been providing conservative politicians and journalists with information—and misinformation—about the anonymous whistleblower who triggered the biggest crisis of Donald Trump’s presidency, two knowledgeable sources tell The Daily Beast.
Derek Harvey, who works for Nunes, the ranking Republican on the House intelligence committee, has provided notes for House Republicans identifying the whistleblower’s name ahead of the high-profile depositions of Trump administration appointees and civil servants in the impeachment inquiry. The purpose of the notes, one source said, is to get the whistleblower’s name into the record of the proceedings, which committee chairman Adam Schiff has pledged to eventually release. In other words: it’s an attempt to out the anonymous official who helped trigger the impeachment inquiry.
On Saturday, The Washington Post reported that GOP lawmakers and staffers have “repeatedly” used a name purporting to be that of the whistleblower during the depositions. The paper named Harvey as driving lines of questioning Democrats saw as attempting to determine the political loyalties of witnesses before the inquiry. A former official told the Post that Harvey “was passing notes [to GOP lawmakers] the entire time” ex-NSC Russia staffer Fiona Hill was testifying.
UPDATE: Republican committee lawyer Steve Castor directly asked Ambassador Taylor if he’s heard of or had communicated with the official that conservative media has identified as the alleged whistleblower. Taylor denied knowing him. House GOP Lawyer Tried to Out Whistleblower in Bill Taylor Interview.
Castor’s questioning was based upon the “Spygate” conspiracy theory that Trump world has been promoting. Buzzfeed News reports that a 2017 investigation into possible Ukrainian attempts to influence the 2016 US presidential election by Politico, written by Ken Vogel and Ukraine-based reporter David Stern titled “Ukrainian Efforts to Sabotage Trump Backfire,” was likely the beginning of the Ukrainian collusion narrative. Andriy Telizhenko worked in the Ukrainian Embassy in Washington, DC, and has spent the years since his brief stint there pushing the Ukrainian collusion conspiracy. How A Viral Article On Facebook Convinced Trump’s Inner Circle They Had Found Their Very Own Ukrainian “Whistleblower”. Andriy Telizhenko has met with Rep. Devin Nunes, and Rudy Giuliani, Trump’s personal lawyer, has enthusiastically promoted Telizhenko’s allegations and met with him extensively. And Trump has touted his claims. Source for ‘Ukraine Collusion’ Allegations Met Devin Nunes.
“Exposing the identity of the whistleblower and attacking our client would do nothing to undercut the validity of the complaint’s allegations,” said Mark Zaid, one of the whistleblower’s attorneys. “What it would do, however, is put that individual and their family at risk of harm. Perhaps more important, it would deter future whistleblowers from coming forward in subsequent administrations, Democratic or Republican.” Zaid has represented The Daily Beast in freedom-of-information lawsuits against the federal government.
Republican lawmakers are publicly spreading the name of a CIA officer named in a RealClearInvestigations report as the whistleblower who reported President Donald Trump’s pressure on Ukraine to investigate the Bidens.
The unconfirmed report named a 33-year-old CIA analyst as the purported whistleblower, although mainstream media outlets have declined to disclose the name after his attorneys warned that they have received death threats targeting their client. Republican lawmakers have reportedly repeatedly attempted to get the whistleblower’s name on record at impeachment hearings in hopes that it will be released publicly. (Salon has made the decision not to publish this person’s name, although it will no doubt soon be in the public record.)
The report, which relied primarily on quotes from former Trump administration officials and a “dossier” compiled on this individual that has circulated around Capitol Hill, identifies the purported whistleblower as a “registered Democrat” who worked on the National Security Council under the Obama administration and was held over in the early days of the Trump administration before he was “accused of working against Trump,” according to the report.
As a Ukraine expert on the National Security Council, this CIA analyst is said to have worked closely with Vice President Joe Biden, who was Obama’s point man on Ukraine. The whistleblower’s attorneys have declined to confirm his identity and have condemned the attempts to expose him.
But the report was not the first public mention of the CIA analyst’s name.
Rep. Louie Gohmert, R-Texas, dropped the name of the purported whistleblower during a public House Natural Resources Committee hearing last week, The Dallas Morning News has reported.
“A lot of us in Washington know who it is,” Gohmert told a Dallas radio station after the hearing, claiming that the whistleblower is a “very staunch Democrat” who was “supposed to be a point person on Ukraine, during the time when Ukraine was its most corrupt, and he didn’t blow any whistles on their corruption.”
After the report was published, Sen. Rand Paul, R-Ky., shared the claims with his 2.6 million followers.
“It is being reported that the whistleblower was Joe Biden’s point man on Ukraine,” Paul tweeted. “It is imperative the whistleblower is subpoenaed and asked under oath about Hunter Biden and corruption.”
“Stop trying to endanger the life of the whistleblower, Senator,” replied national security attorney Bradley Moss.
The name quickly spread among conservative circles and the report was shared by right-wing pundits like Ann Coulter and reporters for far-right news outlets like The Daily Wire.
Despite repeatedly sharing the report, Coulter expressed doubts that the CIA analyst cited is actually the whistleblower.
Radio host Rush Limbaugh also named the purported whistleblower on his show and disputed that he was entitled to whistleblower protection.
“This guy’s a leaker. He’s not a whistleblower,” Limbaugh said.
“He’s 30-some-odd years old. I’ve got a picture. It looks like the pajama boy in the Obama ad that they ran back during, I think, the first term,” Limbaugh said, referencing a photo included in the report showing the CIA analyst at age 18 years.
Gohmert made a similar argument in a speech on the House floor Thursday, claiming that the person who reported Trump’s call was using whistleblower status to avoid prosecution.
“It could make sense if you’re a co-conspirator in trying to bring down a duly elected president that you might want that whistleblower status,” he said, according to The Dallas Morning News.
Despite the Republican drive to reveal the whistleblower’s identity, outing him would change little or nothing about the impeachment inquiry. The acting director of national intelligence, the intelligence community inspector general and the top lawyer at the CIA — all of them Trump appointees — reviewed the whistleblower complaint, found it “credible” and referred it to the Justice Department for possible prosecution. The DOJ did not pursue the allegations.
In the weeks since the whistleblower complaint was released, the White House has released a partial call transcript that confirmed many of the whistleblower’s claims, even though it omitted specific references to Biden that were made on the call, according to Lt. Col. Alexander Vindman, a National Security Council Ukraine expert who testified to Congress.
Since the partial transcript was released, officials from the National Security Council and the State Department have confirmed to impeachment investigators that there was a quid pro quo between Trump and Ukraine. Sen. Ron Johnson, R-Wis., admitted as much in public, as did acting White House chief of staff Mick Mulvaney, before trying to walk it back.
The whistleblower’s attorneys released a statement on Thursday slamming the attempts to out the whistleblower.
“Our client is legally entitled to anonymity. Disclosure of the name of any person who may be suspected to be the whistleblower places that individual and their family in great physical danger,” the statement said. “Any physical harm the individual and/or their family suffers as a result of disclosure means that the individuals and publications reporting such names will be personally liable for that harm. Such behavior is at the pinnacle of irresponsibility and is intentionally reckless.”
And yet, the Republican attempts to identify the whistleblower are increasing today.
“President Donald Trump on Sunday reiterated his calls to reveal the name of the whistleblower behind the complaint that led to the House’s formal impeachment inquiry, mentioning unconfirmed reports about the person’s identity and possible ties to the previous administration.” Trump inches closer to outing purported whistleblower.
The lawyers for the whistleblower offered to answer House Republicans’ written questions, under oath. Whistle-Blower Willing to Answer Republicans’ Questions, Lawyer Says:
The offer was intended to deter Republican attacks and show that the whistle-blower, a C.I.A. officer, is above the political rancor unleashed by House Democrats’ inquiry. But it appeared not to satisfy House Republicans, who, led by Mr. Trump, have assailed the whistle-blower as politically motivated and demanded his identity be revealed.
And of course, Trump rejected the whistleblower’s offer. Trump rejects offer of written answers from whistleblower: President Donald Trump on Monday rejected an offer by the lawyer for the anonymous whistleblower at the center of House Democrats’ impeachment inquiry to submit written answers to questions from Republican lawmakers.
UPDATE: So written answers to interrogatories were fine for Donald Trump in Special Counsel Robert Mueller’s investigation — Trump was non-responsive and evasive in his sworn answers — but it’s not OK for the whistleblower? Hypocrite.
- The whistleblower followed the law, and is entitled to the whistleblower law protection of his or her identity, and from retaliation.
- The Inspector General found the whistleblower’s complaint “credible” under the law, and that the whistleblower acted in good faith. The Inspector General referred the complaint to Congress.
- The CIA’s top lawyer made a criminal referral of the complaint to the Justice Department.
- Everything the whistleblower alleged in the complaint has now been corroborated by the State Department and national security witnesses who have testified before Congress under oath about their first hand knowledge of the events.
- The witnesses have confirmed there was a quid pro quo for illegal extortion and bribery of Ukraine to receive Javelin missiles and security assistance approved by Congress in exchange for a “favor,” i.e., the investigation of bizarre conspiracy theories about the 2016 election and Joe Biden and his son Hunter (that have been entirely debunked).
- The whistleblower told the truth and was correct on the facts. The whistleblower is blameless.
The only criminality here is by Donald Trump and his thugs in Congress who are openly violating the whistleblower law to engage in unlawful retaliation against the whistleblower and unlawful witness intimidation. They are potentially putting the whistleblower’s safety and life in danger, given the fanatical sycophant supporters of the personality cult of Donald Trump.
These Republicans are committing a crime in plain sight. They should be held accountable at law.