Whistleblowers are protected by law because they are not spies or traitors.
Mark Felt and Daniel Ellsberg are probably the two most famous “whistleblowers” I know of. I actually met Mark Felt, who was from Idaho, briefly at an Idaho Society meeting in Washington, D.C. I never met Daniel Ellsberg.
I was working in Washington, D.C., on the staff of Sen. Frank Church in 1971 when Ellsberg “leaked” the Pentagon papers to The New York Times. I was in Washington, D.C., when Mark Felt was talking to The Washington Post in a D.C. garage as “Deep Throat.”
Ellsberg was “outed” quickly when compared to Felt. Felt kept his identity as “Deep Throat” hidden until shortly before his death for over 30 years.
There was no “whistleblower” protection law to protect Felt or Ellsberg. They were “leakers.” They were both part of the system who became deeply disturbed by what they witnessed and learned.
Today they are enshrined in our federal laws’ whistleblower protections. These laws were championed by a conservative Republican Sen. Charles Grassley of Iowa. Grassley, who has served as the chairman of the Senate Judiciary Committee, stated on Sept. 24, “… it’s important to respect the law and the whistleblower’s confidentiality.”
Formal processes under the law are established. Special enhanced provisions exist in the law specifically for intelligence agencies. The identities of whistleblowers are protected, and retaliation against them is strictly prohibited. There are provisions in the law that allow whistleblowers to bring complaints to specific committees of Congress or their chairs in ranking minority members if action is not taken on a valid complaint. Congress, as well, is required to protect the identity of the whistleblower. The identity protection cannot be removed unless specific requirements are followed, and the bar is high.
Bob Woodward, the Watergate reporter who worked with Mark Felt, protected his identity as a source for over 30 years. In his book about Felt, “The Secret Man,” published in 2005, he points out in some detail the pressure on someone like Felt who becomes a confidential source on issues of wrongdoing at the highest levels of the national government. In Felt’s case, the information he provided played a large role in President Nixon’s decision to resign.
Under the formal processes of the intelligence community, the inspector general for the intelligence community must first review the whistleblower complaint and the facts. He or she must then certify, before the complaint goes forward that he or she has conducted an investigation, usually involving some or all of the witnesses identified, and that the inspector general finds the evidence “appears credible” and if appropriate that is a matter of “urgent concern.” The term “urgent concern” is defined, in pertinent part as “a serious or flagrant problem, abuse, violation of law or Executive Order…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 opinion concerning public policy matters.”
Some have said the whistleblower complaint is an effort by the “deep state” to do in President Trump. That is a hard sell when this inspector general is a Trump appointee confirmed by a Republican majority Senate. In addition, the Trump-appointed inspector general on Sept. 30 issued a public letter that basically says the claims that the whistleblower complaint is all hearsay is nonsense. The inspector general found additional information that “supports the Complaint’s allegation that, among other things, during the call the president ‘sought to pressure the Ukrainian leader to take action to help the president’s 2020 reelection bid.’” The inspector general also made clear that the charge the forms used were changed just to accommodate the complaint were false, pointing out the form had been in existence since May 24, 2018. The whistleblower’s complaint was filed on Aug. 12, 2019. The new form was not approved until Aug. 19, 2019. So much for another false “deep state” conspiracy claim.
As with any federal investigation, it is a crime to lie to a federal investigator. (Remember the firing of acting director of the FBI Andrew McCabe was justified on the basis he was evasive or not truthful in the inspector general’s investigation of some of his actions.)
It is also a crime to intimidate a witness or witnesses by threats or otherwise; that is obstruction of justice. In the Mueller Report, President Trump was not fully cleared of all charges. Mr. Mueller made clear in his testimony that criminal charges were not filed on obstruction of justice claims because of the Justice Department’s position that a sitting president could not be indicted, not because the president was innocent. The president could still be charged after he leaves office or is impeached and convicted. (See Federalist Papers No. 65, Alexander Hamilton.) That is not being “cleared.” Only a jury can “clear” the president after a trial, if he is charged, by a unanimous not guilty verdict. The verdict comes only after the jury has heard all the witnesses and seen the other evidence. Impeachment is not a trial. Only issues set out in the Articles of Impeachment are considered.
In this matter, the evidence has already been found credible by the president’s own appointed inspector general. Other witnesses have been named in the complaint and supporting documents, though certainly not all of them have been produced. (I have read the full complaint, phone conversation, record and inspector general’s transmittal letter.)
The president has said that those who saw what happened, heard what he said, reported it to the whistleblower and perhaps to the inspector general along with the whistleblower himself or herself are spies and traitors and should be treated as such (they used to be executed, though not always). That’s called threat in common language.
I want to point out to the president that these people are not spies or traitors; they are witnesses. Threats of retaliation may give them even more strong incentives to testify truthfully.
Telling the truth is what most witnesses try to do. This president, however, with well over 12,000 documented lies or half truths to his credit since taking office may find that hard to believe.