The American public is trying to predict the White House’s next step in this unprecedented case. Those predictions raise an interesting question that could test the limits of intelligence community whistleblower protections: Can the president fire this whistleblower?
The answer is much more complicated than the question.
No, Trump cannot directly fire this person, who is reported to be a Central Intelligence Agency analyst, just as the president cannot directly fire any Central Intelligence Agency officer or analyst. Not even the leader of the free world can cut through bureaucratic red tape quite that smoothly. But he can order his Cabinet to act on his behalf.
President Richard Nixon learned this lesson when he tried to fire Ernie Fitzgerald, a senior Air Force employee and whistleblower. After Fitzgerald made a whistleblowing disclosure to Congress concerning billions of dollars of Pentagon cost overruns, Nixon — as his secret tapes infamously indicated — ordered his secretary of defense, Melvin Laird, to fire Fitzgerald. Nixon recounted the event to an aide: “I’d marked it in the news summary. That’s how that happened. I said get rid of that son of a bitch.” Fitzgerald was eventually rehired in 1973, after a congressional investigation.
Trump could, ill-advisedly, take a cue from Nixon’s playbook. He has an obvious animus against this whistleblower. He has made that clear in numerous tweets and press statements, threatening in one tweet “Big Consequences!” for the person. In delivering on that threat, he could order the director of the CIA to fire this whistleblower on his behalf, just as Nixon ordered the secretary of defense to fire Fitzgerald.
Yet times have changed, and the post-Nixon civil service reforms created protections against some whistleblower retaliation, in large part due to the obvious retaliation that Fitzgerald and others like him faced. As a result, the president should be wary to order retaliation against this whistleblower. The venom he already has publicly expressed would be smoking-gun evidence that he has either violated or directed the violation of whistleblower protection law. Any investigation’s conclusion of this charge would almost certainly find its way into any articles of impeachment produced by the House of Representatives.
Short of appearing before impeachment hearings, though, there are few remedies that this whistleblower could use to enforce his legal protections, especially given the lack of judicial review (or even quasi-judicial review in administrative courts) for retaliation against intelligence whistleblowers.
In this case, an intelligence employee filed a protected whistleblowing disclosure with the intelligence community inspector general, who conducted a preliminary review and determined that the disclosure was a credible, urgent concern. The whistleblower followed convoluted, so-called “proper channels” that trigger certain legal rights and protections. (My father, Charles McCullough, who served as inspector general for the intelligence community from 2010 to 2017, was part of the whistleblower’s legal defense team until recently; we did not discuss the case because it involved policy areas I work on.)
Whistleblower experts frequently refer to a “patchwork of protections” that shield intelligence whistleblowers like this one from retaliation. This patchwork includes an Obama-era policy directive establishing formal, administrative rights for intelligence whistleblowers to challenge reprisal, a regulation implementing that directive inside the intelligence community and a number of statutes that solidify some of this directive in federal law.
Bluntly, any officer or employee of an intelligence agency shall not “take or fail to take, or threaten to take or fail to take” any personnel action as “reprisal for a Protected Disclosure.” This means that intelligence employees cannot fire, demote or even threaten to take any other adverse action against a whistleblower’s career because the person made a protected disclosure.
But enforcement of these protections is a magnet for cynicism.
While the president could not fire the whistleblower himself, as Nixon learned, he could order senior officials within the whistleblower’s agency to act on his behalf. The whistleblower’s attorneys could challenge that move to the inspector general in the form of a retaliation complaint — and, if this case were not so prominent and did not involve the president, they would likely prevail.
However, these are not normal circumstances. The intelligence community inspector general cannot investigate the president, as Trump is not an intelligence community officer or employee. Instead, the watchdog would likely substantiate the reprisal as credible and urgent and transmit such findings to the congressional intelligence committees. Even under normal circumstances, after a supportive investigation, the inspector general can merely offer recommendations for corrective action that agencies will enact; the inspector general can hardly force the CIA to rehire a fired officer.
Because intelligence whistleblowers lack the right to due process, either through judicial proceedings or administrative courts, the whistleblower’s vocational fate is at the CIA’s mercy. But Congress can change that.
While Congress’s authority to direct executive branch personnel decisions is disputed, this hypothetical reprisal would likely enter the House’s impeachment inquiry. Congressional investigators could elicit more facts underlying the case and make a determination as to whether the president directed reprisal against the whistleblower.
Existing whistleblower protection laws and regulations do not account for the possibility of the president directing retaliation against an employee. But the Constitution may. Congress, rather than a presidential policy directive or a statute, largely interprets the definition of high crimes and misdemeanors that qualify as impeachable misconduct. Directing retaliation against the whistleblower underlying the entire inquiry could certainly be perceived as such.
Our best hope is that any orders to retaliate never leave the president’s mind. If they do, though, anyone responsible for their implementation ought to remember this advice: Rather than retaliate against your own colleague, resign. Or else you could unleash a bureaucratic fury only Congress could quell.