Targeting impeachment whistleblower has chilling effect
By Nancy M. Modesitt
Nov 13, 2019 | 1:51 PM
It is outrageous that Republicans in Congress are threatening to subpoena the whistleblower whose complaint led to the impeachment inquiry. That and other attempts to “out” this individual are contrary to the spirit, if not the plain language, of federal law; are likely to place the whistleblower in physical danger; and will impede the stated federal goal of both protecting and promoting whistleblowing by employees of the federal government.
The statute under which the whistleblower made his complaint, 50 U.S.C.A. §3033, flatly prohibits the inspector general of the intelligence community from revealing the identity of the whistleblower. Anonymity is the intent of the statute. While there is an exception where revealing the identity of the whistleblower is “unavoidable,” or where the whistleblower is to be prosecuted for a crime, neither exception applies here.
Those who wish to reveal the whistleblower’s identity have stated that it would not violate federal law to do so. Technically, there is an argument to be made that only the Inspector General is prohibited from revealing the whistleblower’s identity. However, one of the reasons for having an option for employees to report wrongdoing outside their chain of command is to foster confidential reporting. Indeed, the inspector general’s own website suggests that employees report to the inspector general if they wish to keep their identities anonymous.
In addition, there is good reason to be concerned about the whistleblower’s physical safety if he is exposed. Critics of the current administration have been subjected to harassment, including death threats. If the whistleblower is to be identified, there needs to be a persuasive justification for the risks that exposure would create.
One argument that has been made for identifying the whistleblower is based on the allegation that the whistleblower had bad motives for filing the complaint. This is insufficient justification for identifying the whistleblower. The motives of whistleblowers are not relevant under most federal statutes. This is because the overarching goal of whistleblower statutes is to promote reporting of potential wrongdoing, regardless of the reasons for making the report. It doesn’t matter why a person reports wrongdoing, unless it affects their credibility.
In this case, the inspector general appointed by President Trump found the whistleblower to be credible. And because the whistleblower lacks firsthand knowledge of the facts, his motive becomes vanishingly unimportant because it is not his description of events that matters. Instead, it is the testimony of those who have firsthand knowledge of the events in question. Rather than worry about the motives of the whistleblower, examine the motives of those who have direct knowledge of the facts. Those individuals’ motives are the ones that matter here.
Of course, whistleblowers know that there is always the possibility of losing their anonymity. Sometimes an investigation of wrongdoing requires the disclosure of the whistleblower’s identity. But that is not the situation here. The whistleblower’s complaint started the investigation, which is now well under way. This investigation does not need the whistleblower’s testimony in an open hearing.
The focus of the investigation, and the media, should not be on the whistleblower any longer. Keeping it there threatens this whistleblower, as well as the entire system of whistleblower protections that has been carefully enacted. How many federal employees will be willing to come forward with information about abuses of power, violations of the law or gross mismanagement if this whistleblower is exposed and subjected to the inevitable harassment that will follow?
But perhaps that is, in fact, one of the goals of those seeking to identify the whistleblower: to send a message about the extremely high cost of reporting wrongdoing and thereby discourage any further whistleblowing during this administration.
Nancy M. Modesitt is a professor at the University of Baltimore School of Law. She is an expert on employment law and a co-author of “Whistleblowing: The Law of Retaliatory Discharge,” (3d Ed. Bloomberg 2015). She has also written several law review articles on the subject. She can be reached at firstname.lastname@example.org.