“Visible downgrading” by RestrictedData is licensed under CC BY 2.0
Hunter Poindexter, Associate Member, University of Cincinnati Law Review
I. Introduction
In September 2019, reports came forward of a whistleblower complaint regarding President Trump’s contacts with the Ukrainian government.[1] The whistleblower reported that President Trump engaged in a discussion with the Ukrainian President to request investigations into former Vice President Joe Biden and his son.[2] Since this disclosure, the President and other republican politicians have called for the whistleblower’s identity to be publicly revealed.[3] This article analyzes the current legal protections afforded to whistleblowers, and whether these laws adequately protect the whistleblowers’ interests.
II. Background
A. Whistleblower Laws
Whistleblowing is “the lawful disclosure of information a discloser reasonably believes evidences wrongdoing to an authorized recipient.”[4] The term “whistleblower” may reasonably describe disclosers in a number of different fields, including governmental entities, corporations, and the intelligence community (“IC”).[5] The history of laws regarding whistleblowers is lengthy and tedious; because the Ukrainian whistleblower is a member of the intelligence community, only laws specifically relevant to IC employees will be discussed in-depth.
In 1989, Congress enacted the Whistleblower Protection Act of 1989 to protect federal employees from retaliation by employers for whistleblowing.[6] However, this act did not apply to employees in the IC.[7] In response to this exclusion, Congress enacted the Intelligence Community Whistleblower Protection Act (“ICWPA”) of 1998.[8] The ICWPA provided an avenue for IC employees to confidentially disclose information of suspected corrupt activity to the Inspector General of the United States.[9]
With the Intelligence Authorization Act for Fiscal Year 2010, Congress created the Office of the Intelligence Community Inspector General.[10] Under 50 U.S.C. 3033, IC employees may report information “with respect to an urgent concern” to the Intelligence Community Inspector General (“ICIG”).[11] An “urgent concern” must fall into one of the following categories:
- A serious or flagrant problem, abuse, violation of law or Executive Order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of national Intelligence involving classified information, but does not include differences of opinions concerning public policy matters.
- A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration or operation of an intelligence activity.
- An action, including a personnel action described in section 2302(a)(2)(A) of title 5, United States Code, constituting reprisal or threat of reprisal prohibited under subsection (g)(3)(B) of this section in response to an employee’s reporting an urgent concern in accordance with this paragraph.[12]
Once an employee has made such disclosure, the ICIG must determine the credibility of the complaint within fourteen days.[13] Should the ICIG deem the complaint credible, the ICIG must then pass the complaint along to the Director of National Intelligence (“DNI”).[14] It is then the responsibility of the DNI to forward the complaint to congressional intelligence committees (“CICs”).[15] If the ICIG finds the complaint not credible, the whistleblower may take the complaint directly to CICs after receiving guidance from the DNI on the proper security measures.[16]
Federal law prohibits IC agencies from taking retaliatory employment measures against whistleblowers who legally disclose information.[17] Moreover, the ICIG may not disclose the identity of the whistleblower, unless the “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 . . ..”[18]
In 2012, President Obama signed Presidential Policy Directive 19 (PPD-19), Protecting Whistleblowers with Access to Classified Information, which provided increased protections for IC whistleblowers through the executive branch.[19] PPD-19 requires IC agencies to have internal review processes for whistleblowers who claim retaliatory personnel decisions were made after a lawful disclosure, as well as a review process for whistleblowers who are denied security clearances.[20] In 2014, Congress codified parts of PPD-19 by enacting Title VI of the Intelligence Authorization Act for Fiscal Year 2014.[21] This law prohibits an IC agency from taking personnel actions against a whistleblower who has made a lawful disclosure to the ICIG, the DNI, the head of the employing IC agency, the IC agency’s inspector general, a CIC, or a member of a CIC.[22] Moreover, this law prohibits an IC whistleblower from being denied security clearance after making a lawful disclosure.[23] Pursuant to PPD-19, Intelligence Community Directive-120 (“ICD-120”) requires agencies to enact review processes for personnel and security clearance decisions related to lawful disclosures by whistleblowers.[24] Furthermore, ICD-120 allows IC whistleblowers to request an external IC panel to review possible retaliatory personnel actions.[25]
In light of these protections, it would appear that Congress and the executive branch have attempted to provide significant safeguards for IC whistleblowers. However, as this article will discuss, these safeguards tend to fall short, particularly in the context of the Ukraine whistleblower.
B. Ukraine Whistleblower
In August 2019, an IC whistleblower came forward with a complaint that President Trump engaged in improper dealings with Ukrainian President Volodymyr Zelensky.[26] Specifically, the complaint alleged that on a July 25 phone call, President Trump used his presidential powers to pressure Zelensky to investigate a political opponent: former Vice President Joe Biden and his son, Hunter Biden.[27] Pursuant to federal law, the whistleblower filed the complaint with ICIG, Michael Atkinson.[28] Atkinson then forwarded the complaint to acting DNI Joseph Maguire, who elected not to pass the complaint along to Congress.[29] During a congressional hearing, Maguire alleged that he did not transmit the complaint because he was advised by White House Counsel that it may include privileged information .[30]
Following reports of the whistleblower complaint, the House of Representatives opened an impeachment inquiry against the President.[31] In light of the impeachment inquiry, a number of republicans have called for the whistleblower’s identity to be revealed.[32] Notably, Senators Lindsey Graham and Rand Paul have argued that the United States Constitution provides the President the right to know the whistleblower’s identity.[33] As such, Senator Paul blocked a resolution on the Senate floor restating the Senate’s support for protecting whistleblowers.[34]
III. The Shortcomings of Whistleblower Laws
A. No Legal Recourse
While IC whistleblowers have the opportunity to challenge retaliatory personnel actions through internal review channels, they are nonetheless denied access to the judicial system as a means for challenging these actions.[35] Moreover, when illegal personnel actions are taken against whistleblowers, it is the responsibility of the President to enforce federal whistleblower protections.[36] Without access to the court system, it is unlikely that IC whistleblowers are able to consistently receive adequate protection from retaliatory actions by their employers. When whistleblowers make lawful disclosures against their own IC agencies, it reflects poorly on the individuals within the agency. As such, even when review processes are in place to challenge retaliatory actions, the processes are still likely biased against the whistleblower.
In scenarios in which the whistleblower must rely on the President to adequately enforce whistleblower protection laws, a significant conflict of interest arises. Specifically, in the case of the Ukraine incident, the IC whistleblower made a complaint against President Trump. The whistleblower must now rely on the same man he has accused of violating the law to enforce his protections. Thus, it is highly unlikely that the whistleblower will receive unbiased treatment, particularly as the President calls for the whistleblower’s identity to be revealed.
B. Threat of Revealed Identity
Although federal law requires the ICIG to keep a whistleblower’s identity confidential save for a few circumstances,[37] it appears that there are no legal repercussions under 50 U.S.C. § 3033 for other individuals who out the whistleblower’s identity.[38] However, it is unclear whether other federal laws would prohibit outing the whistleblower.[39] Nonetheless, in high-profile instances of whistleblowing involving politics, the risk of identity disclosure remains high. While the legal consequences for individuals outing the whistleblower might be slim, there are nonetheless real consequences for whistleblowers and the IC community.
First, if a whistleblower’s identity is revealed, the whistleblower will surely face a number of risks. As aforementioned, a whistleblower will likely face personnel actions for making disclosures against his own IC agency. These actions may range from demotions to termination. Even if the whistleblower does not face official personnel reprisals, he might nonetheless be subject to ostracism and criticism from coworkers and supervisors, thus creating a hostile work environment for the whistleblower.
In addition to issues in the workplace, the whistleblower would also face significant scrutiny in his personal life, especially in high-profile cases such as the Ukraine incident. For example, media outlets will almost certainly do extensive research into the whistleblower’s background and personal life. Furthermore, a whistleblower could face significant physical dangers if his identity is revealed. In instances where the whistleblower discloses information on a political figure, the whistleblower could face death threats or other threats of physical violence.
Even more significant is the impact revealing a whistleblower’s identity could have on the intelligence community and governmental transparency. When a whistleblower’s identity is publicly revealed, the disclosure chills the likelihood that other whistleblowers will come forward when corruption and illegality occur. This chilling effect hinders the public’s ability to hold the government accountable for its actions. Thus, the need for whistleblower anonymity is crucial for proper governmental oversight. Without these protections, a potential whistleblower may elect to punt on the disclosure, hoping someone better-positioned might come forward.
IV. Conclusion
While federal law provides protections for IC whistleblowers, the limitations on these laws significantly inhibit a whistleblower’s ability to protect his interests. Because the law precludes IC whistleblowers from accessing the court system, whistleblowers must rely on the will of the executive branch to enforce their legal protections. Moreover, the threat of identity disclosure puts whistleblowers at risk of significant physical harm. When a whistleblower is outed, other potential whistleblowers are likely dissuaded from disclosing pertinent information regarding governmental corruption. This chilling effect ultimately impedes transparency.
[1]Eugene Kiely et al., The Whistleblower Complaint Timeline, FactCheck.org (September 27, 2019), https://www.factcheck.org/2019/09/the-whistleblower-complaint-timeline/ [https://perma.cc/WL4G-NPYL].
[2]Id.
[3]Holmes Lybrand, Fact check: Does the 6th Amendment require the whistleblower to face Trump?, CNN (November 6, 2019), https://www.cnn.com/2019/11/06/politics/sixth-amendment-require-whistle-blower-to-face-donald-trump-fact-check/index.html [https://perma.cc/KSL7-ZYKM].
[4]Cong. Research Serv., Intelligence Community Whistleblower Protections1 (2019).
[5]See National Whistleblower Center, What is a Whistleblower?, National Whistleblower Center, https://www.whistleblowers.org/what-is-a-whistleblower/ [https://perma.cc/4Y8S-6J6Q].
[6]5 U.S.C. 2302(b)(8)-(9)
[7]Robert S. Litt, Unpacking the Intelligence Community Whistleblower Complaint, Lawfare (September 17, 2019), https://www.lawfareblog.com/unpacking-intelligence-community-whistleblower-complaint [https://perma.cc/8XU6-ZG6S].
[8]Cong. Research Serv., Intelligence Community Whistleblower Protections2 (2019).
[9]Id.
[10]50 U.S.C. 3033(a).
[11]§ 3033(k)(5)(A).
[12]§ 3033 (k)(5)(G).
[13]§ 3033 (k)(5)(B)
[14]Id.
[15]50 U.S.C. § 3033 (k)(5)(C).
[16]§ 3033 (k)(5)(D).
[17]§ 3033 (g)(3)(B).
[18]§ 3033 (g)(3)(A).
[19]Cong. Research Serv., Intelligence Community Whistleblower Protections6 (2019).
[20]Id. at 7.
[21]Id. at 8.
[22]Id., 50 U.S.C. § 3234(b)
[23]50 U.S.C. § 3341(j).
[24]Cong. Research Serv., Intelligence Community Whistleblower Protections9 (2019).
[25]Id.
[26]Kevin Liptak et al., Whistleblower timeline: Team Trump contacts and Ukraine, CNN (September 27, 2019), https://www.cnn.com/2019/09/20/politics/whistleblower-timeline-ukraine-team-trump/index.html [https://perma.cc/F8V3-KESC].
[27]Devlin Barrett et al., Whistleblower claimed that Trump abused his office and that White House officials tried to cover it up, Washington Post (September 26, 2019),https://www.washingtonpost.com/national-security/house-intelligence-committee-releases-whistleblowers-complaint-citing-trumps-call-with-ukraines-president/2019/09/26/402052ee-e056-11e9-be96-6adb81821e90_story.html [https://perma.cc/P8NR-YEWS].
[28]Kevin Liptak et al., Whistleblower timeline: Team Trump contacts and Ukraine, CNN (September 27, 2019), https://www.cnn.com/2019/09/20/politics/whistleblower-timeline-ukraine-team-trump/index.html [https://perma.cc/F8V3-KESC].
[29]Rebecca Morin, Top Moments from acting DNI Joseph Maguire’s testimony about the Trump whistleblower complaint, USA Today (September 26, 2019), https://www.usatoday.com/story/news/politics/2019/09/26/whistleblower-complaint-top-moments-joseph-maguire-testimony/3774069002/ [https://perma.cc/DT45-K4LR].
[30]Julian E. Barnes & Adam Goldman, Joseph Maguire, Acting D.N.I., Holds His Ground, The New York Times (September 26, 2019), https://www.google.com/amp/s/www.nytimes.com/2019/09/26/us/politics/joseph-maguire-intelligence.amp.html%5Bhttps://perma.cc/QJ6T-TV99%5D.
[31]Rebecca Morin, Top Moments from acting DNI Joseph Maguire’s testimony about the Trump whistleblower complaint, USA Today (September 26, 2019), https://www.usatoday.com/story/news/politics/2019/09/26/whistleblower-complaint-top-moments-joseph-maguire-testimony/3774069002/ [https://perma.cc/DT45-K4LR].
[32]Holmes Lybrand, Fact check: Does the 6th Amendment require the whistleblower to face Trump?, CNN (November 6, 2019), https://www.cnn.com/2019/11/06/politics/sixth-amendment-require-whistle-blower-to-face-donald-trump-fact-check/index.html [https://perma.cc/T94W-4WKD].
[33]Id.
[34]Emma Austin, Rand Paul blocks resolution restating Founding Fathers’ whistleblower protections, Courier Journal (November 7, 2019), https://www.courier-journal.com/story/news/politics/2019/11/07/trump-impeachment-rand-paul-blocks-whistleblower-resolution/2516312001/ [https://perma.cc/53NQ-ZYVY].
[35]National Whistleblower Center, The Intelligence Community Whistleblower, What You Need to Know, National Whistleblower Center, https://www.whistleblowers.org/the-intelligence-community-whistleblower-what-you-need-to-know/ [https://perma.cc/QCX7-9G6D].
[36]50 U.S.C. § 3234(d).
[37]50 U.S.C. § 3033(g)(3)(A).
[38]The Week, How the law barely protects whistleblowers, The Week (November 9, 2019), https://theweek.com/articles/877008/how-law-barely-protects-whistleblowers [https://perma.cc/NZX9-ZNZ8].
[39]Tom Devine, Fast Facts on Legal Accountability for Outing the Anonymous Whistleblower, Government Accountability Project, https://www.whistleblower.org/blog/fast-facts-on-legal-accountability-for-outing-the-anonymous-whistleblower/ [https://perma.cc/HQ7W-6JMT].
