Whistleblowers, by the very nature of what they do — alert authorities to potential misdeeds — put themselves in the dangerous position of being demoted, harassed, fired or worse. That’s why there are federal regulations protecting their identities.
It’s also why it is troubling that President Donald Trump and his allies are smearing a whistleblower, and his or her sources, who raised concerns about the president’s phone call with the leader of Ukraine. They have also pushed to gain the identity of the whistleblower, who has been described as an employee of the Central Intelligence Agency who was stationed at the White House when the call was made in July, in which the president asked for help investigating former Vice President Joe Biden and his son Hunter’s work in the country.
“I want to know who’s the person, who’s the person who gave the whistleblower the information? Because that’s close to a spy,” Trump said at an event in New York last month, according to The Los Angeles Times. “You know what we used to do in the old days when we were smart? Right? The spies and treason, we used to handle it a little differently than we do now.”
All the members of Maine’s congressional delegation have condemned the president’s threatening remarks about the whistleblower and his or her sources. “Whistleblowers have played a vital role over the decades in bringing to the attention of Congress wrongdoing, fraud, and abuse, and we do not want to chill those reports,” Sen. Susan Collins told Maine Public. “For the president to denigrate and essentially threaten the whistleblower in this case discourages others from coming forward.”
Of course, this is no ordinary whistleblower. His or her revelation has led to an impeachment inquiry against the president. Because the stakes are so high, it is all the more important to protect the whistleblower’s identity, and to understand why this anonymity is essential to a functional and transparent democracy.
As Time magazine explained in a recent article, whistleblowers have existed for centuries, and they have often been both rewarded and reviled for drawing attention to wrongdoing, both in government and the private sector. Many of their names are well known. Daniel Ellsberg leaked the “ Pentagon Papers,” which showed that the U.S. military involvement in Vietnam was much more extensive than the public had been led to believe. His disclosure is often credited with ending the Vietnam War. He was charged under the Espionage Act, but the charges were eventually dropped because of government misconduct. Karen Silkwood told the Atomic Energy Commission about safety violations, including radioactive contamination, at a nuclear power plant in Oklahoma. She died in a car crash on the way to give documents to a reporter. Movies were made about both, as well as several other whistleblowers.
Linda Tripp recorded conversations with her friend Monica Lewinsky and reported that President Bill Clinton had lied under oath, triggering his impeachment trial. The Department of Defense admitted it violated Tripp’s rights by revealing confidential information from her security clearance file.
The Whistleblower Protection Act, put in place in 1998, protects federal government employees because “Federal employees who make disclosures … serve the public interest by assisting in the elimination of fraud, waste, abuse, and unnecessary Government expenditures [and] protecting employees who disclose Government illegality, waste, and corruption is a major step toward a more effective civil service.”
The act put protections in place to protect whistleblowers from reprisals such as pay cuts, demotions and reassignment.
In 2014, Congress approved new whistleblower protection provisions for U.S. intelligence officials. 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. The whistleblower complaint about the president’s call with Ukraine President Volodymyr Zelensky is straining this system of oversight, said David Colapinto, a lawyer and co-founder of the National Whistleblower Center.
“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,” Colapinto recently told Newsday.
The president also wrongly suggests that it is unfair for him to be unable to meet and confront his accuser. This betrays a fundamental misunderstanding of the fundamentals of whistleblower protection and the impeachment process. In this instance, the House acts like a prosecutor and it is gathering information to determine whether charges should be brought against the president. If it decides to proceed with impeachment, the Senate will then hold the trial. This is when the president’s legal team would be able to challenge witness testimony.
Congress cannot be distracted about the identity of the whistleblower. Instead, their focus must remain on the validity of his or her allegations.