On Tuesday, Sen. Rand Paul (R-Ky.) said that he “probably will" reveal the identity of the whistleblower, asserting that “there’s no law preventing anybody from saying the name.“ Donald Trump Jr. got into the act on Wednesday, tweeting out the name of a person “alleged“ in some right-wing media outlets to be the whistleblower.
Trump and company argue that the Intelligence Community Whistleblower Protection Act, which forbids “retaliation” against a whistleblower, only shields against adverse workplace action and not against disclosure. The president himself couples his calls to out the whistleblower with unsupported assertions that the whistleblower’s account of the call is false.
This is both wrong and brazen. First, as has been widely noted, the whistleblower’s report was corroborated to a remarkable degree both by the rough transcript of the July 25 phone call released by the White House and then by witness after witness during the House inquiry. Most recent came the revelation that Gordon Sondland, the U.S. ambassador to the European Union, had amended his earlier testimony to verify that the administration pressed Ukraine for a clear quid pro quo: U.S. military aid for an investigation into Trump’s political rivals.
That being so, the whistleblower’s job is done. Whistleblower statutes exist to incentivize people to come forward with allegations of wrongdoing for government investigators to examine. If the government concludes there is a sound basis for the allegations, it pursues the matter; the whistleblower then recedes from the scene, and his original motives — of so much apparent interest to Trump and his defenders here — are all beside the point.
Second, disclosure wouldn’t violate the law, according to Paul and other Trump defenders such as Rep. Mark Meadows (R-N.C.), because the whistleblower statute protects only against “retaliation,” which they construe, without argument or support, is limited to workplace reprisal.
But the law itself strongly undercuts this argument. The Intelligence Community Whistleblower Protection Act of 1998 amended, and became part of, the Inspector General Act of 1978, and that law provides that an inspector general’s office may not provide to Congress or the public any personally identifiable information on a whistleblower without the whistleblower’s consent.
More important, the plain meaning of “retaliation” — harming someone who has harmed you — encompasses more than adverse workplace action.
There can be little doubt that a campaign of character assassination awaits this whistleblower if his or her identify become public. Thus, a purposeful outing would be retaliation under a proper reading of the statute, which is one driven by statutory purpose. The purpose of this and other whistleblower statutes is to provide incentive to would-be whistleblowers to make worthwhile what would otherwise be a fraught and harmful path.
The right way to consider what constitutes retaliation under the law is therefore to consider the vantage point of a prospective future whistleblower. Would the political mugging the Republicans are readying for the whistleblower make it less likely that the next person would come forward? Of course. And that’s even before considering the very real threat of physical danger this whistleblower would face at the hands of a crazed zealot.
So the case is clear, but there is still a problem: The protections afforded by the intelligence whistleblower act amount to a bare legal prohibition, and the law provides no real remedy against an improper outing; even if it did, it likely wouldn’t apply to the president or, between the First Amendment and the Constitution’s speech or debate clause, to members of Congress. And pursuing a civil claim against anyone outside the government would also be a heavy lift, because the legal duty not to disclose only runs to government officials.
That doesn’t mean naming the whistleblower would be any less reprehensible. But, in the absence of a muscular remedial structure, it is ultimately only respect for the legal mandate and a shared sense of the larger principle here that protects the whistleblower at this point. How long can that line hold?