Rep. Adam Schiff has repeatedly stated in impeachment hearings in front of the House Intelligence Committee that the Ukraine whistleblower has “a statutory right to anonymity” and blocked Republican questions about him.
The problem, many legal experts say, is that the committee chairman, a California Democrat, is wrong — no specific legal requirement to shield the whistleblower’s identity from the public exists.
The Intelligence Community Whistleblower Protection Act establishes rules for whistleblowers to report on waste, fraud, abuse, and corruption in a lawful manner, and it, along with presidential directives, provides legal protections against reprisals and punishment. Anonymity, however, is not one of those guarantees.
“There is no language in the statute as written — or amended — that gives a whistleblower from the intelligence community the statutory right to anonymity,” Cully Stimson, a former Pentagon official and the head of the Heritage Foundation’s National Security Law Program, told the Washington Examiner. “That’s separate and distinct from whether Congress wants to make the decision to not provide the name — that’s at the discretion of the chairman.”
Intelligence Community Inspector General Michael Atkinson, who received the whistleblower’s complaint in August, has said he must keep the whistleblower’s name secret, but it does not appear this legal prohibition extends to President Trump, his allies, or anyone else. Atkinson said his review of the whistleblower’s allegations related to a July 25 call between Trump and Ukrainian President Volodymyr Zelensky “identified some indicia of bias of an arguable political bias on the part of the complainant in favor of a rival political candidate.”
He wrote, “Such evidence did not change my determination that the complaint relating to the urgent concern appears credible.”
Arthur Rizer, a former Army officer and DOJ prosecutor who leads the R Street Institute’s criminal justice team, said he doubts the law guarantees whistleblower anonymity.
“I am pretty sure on its plain reading only the individual who receives the complaint has a ‘statutory obligation’ to keep anonymity — and, I think, even then, there are circumstances where the veil of anonymity can be pierced,” Rizer told the Washington Examiner. “So, as a starting point, the chairman’s comment is vague and overbroad — and legally speaking, that makes him wrong.”
There are, however, laws against witness intimidation that could apply if the whistleblower was outed.
“In a nutshell, there’s no per se right to whistleblower anonymity,” Stephen Vladeck, a national security legal expert and law professor at the University of Texas, told the Washington Examiner. “But revealing the whistleblower’s identity here may nevertheless be unlawful.”
Both Vladeck and Ukraine whistleblower attorney Mark Zaid referred the Washington Examiner to an article in Just Security, a left-leaning online legal journal based at New York University’s Law School, that offers a lengthy analysis of whistleblower protections.
“Many of those seeking to protect the whistleblower argue that it is unlawful to publicly identify an anonymous whistleblower. Whether that is, in fact, the case is complicated and highlights a significant flaw in how the whistleblower protection laws actually apply,” wrote national security expert Kel McClanahan, who runs the D.C.-based National Security Counselors, in the journal article. “Simply put, there is no clear, unambiguous provision in either the criminal or civil law generally prohibiting the disclosure of a whistleblower’s identity.”
Zaid has told the Washington Examiner he hopes the fate of this whistleblower’s identity would be similar to former FBI official Mark Felt, who disclosed he was Watergate’s “Deep Throat” in 2005, more than three decades after the Watergate scandal, when he was 91.
McClanahan wrote, “One option — the federal witness-tampering law — is a promising candidate for deterring and punishing the disclosure of this particular whistleblower’s identity during this particular investigation.”
Bradley Moss, a whistleblower expert in the same firm as Zaid but who isn’t involved with this case, told the Washington Examiner some people are confusing these issues.
“Only the IC IG’s office is prohibited from releasing the identity, but that doesn’t change whether the statute otherwise considers the name to be confidential,” said Moss. “It simply doesn’t proscribe a restriction on anyone else’s ability to disseminate the name.”
Schiff has shut down Republican efforts to subpoena the whistleblower and cut off GOP witness questioning that could unearth evidence about the whistleblower’s identity, saying he won’t allow efforts to “exact political retribution against the whistleblower“ or “out” the person.
Republicans say they want to know what motivated the whistleblower to file a formal complaint when no one else did and if political bias played a role, whether the person had contact with Schiff’s office beyond a brief conversation with staffers, and if the whistleblower received information from impeachment witnesses prior to filing the complaint, with speculation centered on Lt. Col. Alexander Vindman being the “shaken” official who told the whistleblower the call was “frightening,” “crazy,” and “completely lacking in substance related to national security.”
There are a number of laws that apply to federal whistleblowers.
The Civil Service Reform Act of 1978 allowed federal employees to make certain complaints and protected them from being retaliated against for providing certain types of information to Congress. The Inspector General Act of 1978 provides a pathway for employees to file complaints, guards against reprisals, and instructs inspectors general to guarantee a whistleblower’s anonymity unless disclosing it was unavoidable as part of an investigation. And the Whistleblower Protection Act of 1989 was designed to ensure federal employees didn’t suffer reprisals for making lawful complaints.
Specific whistleblower protections exist for those in the intelligence community who report through the proper channels.
The Intelligence Community Whistleblower Protection Act of 1998 laid out how whistleblowers could provide their complaints up the chain and to lawmakers, encouraged such reporting, and prohibited reprisals against whistleblowers.
The law was strengthened by President Barack Obama and Congress. Obama’s Presidential Policy Directive 19, signed in October 2012, prohibits reprisals against whistleblowers at work or affecting their ability to access classified information. The Intelligence Authorization Act’s Title VI, passed in July 2014, codified those protections against retaliation. And Intelligence Community Directive 120, issued by Director of National Intelligence James Clapper in March 2014, further detailed how whistleblowers should be protected against retaliation when making protected disclosures of alleged wrongdoing.
Overall, lawful whistleblowers in the intelligence community are protected against being fired, demoted, suspended, transferred, denied raises or bonuses, having their security clearances interfered with, and other job-related retaliation.
But none of the legal language guarantees anonymity.
