Trump faces blowback for outing the alleged whistleblower

Bloomberg Washington | Updated on December 30, 2019 Published on December 30, 2019

US President Donald Trump (file photo)   -  REUTERS

US President Donald Trump faces criticism from political opponents — and queasiness even among some supporters — for naming the alleged whistleblower whose complaint triggered the congressional inquiry that resulted in his impeachment.

A retweet on Friday to Trump’s 68 million Twitter followers identified a person it says is the whistleblower. “That could run afoul of two laws,” said David Colapinto, a lawyer who represents whistleblowers at law firm Kohn, Kohn & Colapinto LLP in Washington.

“The President has a responsibility under the whistleblower statute to ensure protection of the intelligence community officials who report alleged wrongdoing,” Colapinto said Sunday. “Trump’s act was wilful violation of the law.”

Also read: Donald Trump impeachment: Explained

Colapinto’s colleague, attorney Stephen Kohn, wrote in the National Law Review on Friday that when Trump signed onto the job of president, protecting intelligence community whistleblowers became one of his few mandatory job duties.

Trump had demanded the whistleblower be identified and testify. Republicans in the House and Senate — which may hold an impeachment trial as soon as next month — also have demanded testimony from the whistle-blower, a step that could pose legal and ethical issues.

‘Follow the law’

Senator John Kennedy, a Louisiana Republican and backer of Trump, said when asked in a CNN interview if he thinks its appropriate for the President to publicly identify the alleged whistleblower, “I think we ought to follow the law.”

Kennedy did not specifically denounce Trump’s tweet, though he said Trump might consider spending less time posting on the social media website. “I have suggested before to the White House that, if the President would tweet a little bit less, it wouldn’t cause brain damage,” Kennedy said on CNN’s State of the Union. “But the President does not have to take my advice, nor do I expect him to.”

Trump’s Twitter move, while a retweet and not an original message, could potentially run afoul of two sets of laws, one protecting whistleblowers in the intelligence community and another portion of the criminal code that protects confidential informants from retaliation.

“No responsible government official or lawyer in the US could credibly argue that someone who brings a complaint to the Inspector General is not protected by the statute,” Colapinto said. “That protection includes remaining anonymous, as well as being shielded from retaliation,” he said.

The tweet — from @Surfermom77 or Sophia,who describes herself as living in California and a 100% Trump supporter — names someone who is allegedly the person who alerted the intelligence community’s Inspector General to the President’s conduct in his July 25 phone call with Ukrainian President Volodymyr Zelenskiy.

Legitimacy questioned

Trump has been edging toward identifying the whistleblower. He has previously questioned the person’s legitimacy and legal standing, called on media organisations to publish the person’s name (as some conservative outlets have) and even demanded to meet the whistleblower himself. His late-Friday tweet was regarded as a provocation even by some officials within the White House, and appeared intended to create a public furore.

Trump claims the whistleblower, working with Democrats, misrepresented his perfect conversation with Ukraine’s leader. But the main facts listed in the complaint were confirmed in the partial transcript of the call later released by the White House.

By making public the unsubstantiated name of the whistleblower Trump encapsulated the pathology of his presidency — a callous and cruel disregard for the well-being of anyone one or anything untethered from his own personal needs and interests, tweeted Aaron David Miller, a senior fellow focusing on foreign policy at the Washington-based Carnegie Endowment for International Peace, and a former State Department analyst.

Also read: Trump’s impeachment is a tribute to the robustness of American democratic institutions

Representative Steve Scalise, the No. 2 Republican in the House, defended Trump’s naming of, and regular attacks on, the informant. He said on Fox News Sunday that he does not believe the whistle-blower deserves that title because he or she was able to submit the complaint anonymously relying on innuendo and false statements.

“A lot of that should come out,” Scalise said. “The public ought to know.”

Trump has tweeted at a furious pace as the impeachment investigation unfolded, averaging more than 50 postings a day over the two weeks that saw the House Judiciary Committee approving articles of impeachment and the full chamber voting to impeach him, according to an analysis by NPR.

His pace has hardly slowed since arriving at his Mar-a-Lago resort in Palm Beach, Florida, for winter vacation, even though Trump often spends hours at his nearby golf course. Since he got to Florida, the president has tweeted 223 times.

Protecting the whistleblower

“Identifying any suspected name for the whistleblower will place that individual and their family at risk of serious harm,” Andrew Bakaj and Mark Zaid, of Compass Rose Legal Group PLLC in Washington, the whistleblowers lawyers, said in a statement in November. “Disclosure of any name undermines the integrity of the whistleblower system and will deter any future whistleblowers.”

The 14 lawmakers who belong to the bipartisan Senate Whistleblower Protection Caucus, which is headed by Iowa Republican Chuck Grassley, have yet to weigh in on the presidents tweet. Michael Zona, a spokesman for Grassley, said Sunday his office stands by a statement issued almost three months ago, when speculation about the whistle-blowers identity began to emerge online.

“This person appears to have followed the whistleblower protection laws and ought to be heard out and protected,” Grassley said in the October 1 statement. “We should always work to respect whistleblower’s requests for confidentiality.”

But the lack of a direct response to Trump’s most recent tweet has drawn criticism from Bakaj, one lawyers working for the whistle-blower.

I have worked with Senator Grassleys staff in the past on whistle-blower matters — an issue he has championed for decades. To say that his silence now is deafening is an understatement, he said in a Saturday tweet. This is a defining moment where legacies will either be solidified or destroyed.

The House passed two articles of impeachment this month that said the president misused his power to pressure Ukraine to investigate former Vice President Joe Biden and his son, and another accusing him of obstructing Congress. House Speaker Nancy Pelosi then has to hand over the articles to the Senate where they will be the basis of a trial.

Published on December 30, 2019
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