“The Sixth Amendment is pretty clear. It’s part of the Constitution, part of the Bill of Rights, and it says that you get to confront your accusers. And so, I think it’s very clear that the only constitutional mandate here is, is that if someone’s going to accuse you of something that might remove the president from office, for goodness’ sake, shouldn’t they come forward and present their accusations in person?”

— Sen. Rand Paul (R-Ky.), in a Fox Business Network interview, Nov. 5, 2019

“The Sixth Amendment guarantees an individual the right to face their accuser. Yet the House of Representatives has been conducting a secret impeachment inquiry based on secret claims made by a secret whistleblower. My bill would make clear that the Sixth Amendment is not superseded by statutes and that the president should be afforded the same rights that we all should: to understand the nature of the allegations brought against them and to face their accuser. This is in the Sixth Amendment. So for all the caterwauling about whistleblower statutes, there is a high law of the land. It is the Constitution, it is the Bill of Rights, and the Sixth Amendment says if you’re accused of a crime, you get to face your accuser.”

— Paul, in a Senate floor speech, Nov. 6, 2019

Paul has long championed protections for whistleblowers. But the one who filed a complaint about President Trump should be unmasked and confronted, he says.

The Sixth Amendment gives criminal defendants the right to face their accusers. A defense attorney, for example, might cross-examine a witness to poke holes in their testimony.

But Paul’s claim falls apart quickly, because the Sixth Amendment applies only in criminal cases. Trump is facing impeachment — a different process with its own constitutional rules. Confrontation rights aren’t guaranteed in impeachment cases, though the Senate holds a trial in which the accused may defend themselves from any charges.

It’s not the first time Trump’s defenders wrongly claim the president’s constitutional rights are being trampled. We gave Four Pinocchios to White House counsel Pat Cipollone for writing that House Democrats were denying Trump “constitutionally mandated due process,” including “the right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence, [and] to have counsel present.”

The Facts

Paul said Trump’s confrontation rights under the Sixth Amendment supersede any laws Congress has passed to protect whistleblowers. But the two things aren’t really in conflict, and the Sixth Amendment doesn’t apply to impeachment in any case.

The Sixth Amendment includes bedrock constitutional protections: the rights to counsel, to call witnesses, to confront accusers and to a speedy public trial with an impartial jury. The text of the amendment starts by limiting those rights to defendants facing “criminal prosecutions.”

Impeachment is a different process that turns on congressional votes. The maximum penalty is removal from office. Under the Constitution, the House has the sole power of impeachment and the Senate the sole power to try impeachment charges, with a two-thirds majority required for conviction.

“The Sixth Amendment has nothing to do with impeachment, and even in the criminal context, in this situation, the informant wouldn’t likely testify,” said Robert S. Litt, who was general counsel at the Office of the Director of National Intelligence under President Barack Obama. In criminal cases, the identity of a confidential informant need not always be disclosed under a 1957 ruling by the Supreme Court, Roviaro v. United States, especially if the informant was just acting as a tipster, he said.

“The text of the Sixth Amendment expressly limits it to ‘criminal prosecutions,’ and even there, the confrontation right applies only to those witnesses whose evidence is used against the defendant at trial,” said Stephen I. Vladeck, a professor at the University of Texas School of Law and an expert on national security law. “There’s no right even in a criminal case to confront every single person who played any role in the investigation leading to the charges (like anonymous tipsters), and there’s no remotely plausible argument that impeachment proceedings in the House count as ‘criminal prosecutions’ under the Constitution.”

The whistleblower in Trump’s case filed a complaint on Aug. 12 to the intelligence community’s inspector general, Michael Atkinson, as an “urgent concern” under federal law. The whistleblower claimed to have “received information from multiple U.S. Government officials” about Trump’s request of the president of Ukraine to investigate Joe Biden, a potential Democratic opponent in the 2020 election. Virtually all the key facts in the complaint have been confirmed by Trump’s public remarks, by the rough transcript of the president’s July 25 phone call with the Ukrainian leader, and by administration officials’ records and testimony before Congress.

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 communicated through proper channels.

“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 statement Sept. 30.

Neither the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA) nor any related statutes guarantees anonymity for whistleblowers. These laws, in conjunction with Presidential Policy Directive 19 and Intelligence Community Directive 120, provide protections from work-related retaliation.

Whistleblowers who follow the law in reporting concerns can’t be demoted, fired or reassigned for it; their pay can’t be altered; they can’t be sent in for psychiatric exams; and their security clearance level can’t be touched.

“Nothing in the ICWPA expressly protects the anonymity of a complainant, or provides sanctions for someone who discloses it,” Vladeck said. “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.”

Federal law does largely restrict the intelligence community inspector general from disclosing whistleblowers’ identities. It says “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 only statutory restriction on disclosing the whistleblower’s identity. Vladeck said it’s nonetheless a best practice to avoid disclosure of the Ukraine whistleblower’s identity “given the concerns about retaliation.”

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.”

Sen. Charles E. Grassley (R-Iowa), a former chairman of the Senate Judiciary Committee who chairs the Whistleblower Protection Caucus, said in a statement Oct. 1: “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.”

Sen. Richard Burr (R-N.C.), the chairman of the Senate Intelligence Committee, said Thursday that he had never considered disclosing the whistleblower’s identity. “We protect whistleblowers,” he said. “We protect witnesses in our committee.” Senate Minority Leader Charles E. Schumer (D-N.Y.) has called efforts to unmask the whistleblower “despicable.”

But, like Paul, Sen. Lindsey O. Graham (R-S.C.), the sitting chairman of the Judiciary Committee, says Trump should be able to confront the whistleblower, though Graham’s claim is more vague. “The Constitution trumps the statute. No American, including Donald Trump, should be accused of something based on an anonymous source. I want to know who the whistleblower is,” Graham said in a Fox News interview Wednesday.

In response to our questions, a spokesperson for Paul said: “The founders of our country clearly set out in the Bill of Rights to ensure that government would not deprive anyone of their rights without a fair opportunity to defend themselves. Confronting one’s accuser is integral to this. Rights in the Bill of Rights are not limiting. They certainly should apply to the president of the United States as much as to any other citizen. This right to face your accuser is fundamental to fairness.”

The Pinocchio Test

Paul’s claim is worth at least Four Pinocchios.

The Sixth Amendment applies only in criminal prosecutions, not impeachment. The whistleblower statutes don’t guarantee anonymity for officials who file complaints; they cover workplace retaliation. The president’s lawyers would have the opportunity to defend him from any charges in a Senate trial. Key witnesses, including Trump, have backed up central facts in the whistleblower’s complaint.

Four Pinocchios

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