The Hill: The Trump-Ukraine whistleblower has a statutory right to confidentiality: it's the law

by Stephen M. Kohn and David K. Colapinto, Opinion Contribution
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The Hill: The Trump-Ukraine whistleblower has a statutory right to confidentiality: it’s the law

Rep. Adam Schiff (D-Calif.) and Sen. Charles Grassley (R-Iowa) don’t often agree. But on protecting the Trump-Ukraine whistleblower’s identity they both got it right. It is the law.

To understand why, simply start with the official form the whistleblower filed when he or she made the initial disclosure. The form itself referenced two laws designed to protect the whistleblowers identity.

First was the Privacy Act. It covers every government agency. It protects every citizen’s right to privacy, including the right to privacy as a federal employee whistleblower. It is the law. It governs the Intelligence Community, where the whistleblower works. Violating the Privacy Act creates civil and criminal liability.

The Inspector General disclosure form that was filed by the whistleblower explicitly stated that the information on that form would be protected under the Privacy Act.

Second was the Inspector General Act. It is not contested that the whistleblower made his or her disclosure to an inspector general. The IG Act prohibits the inspector general from releasing the identity of the whistleblower. That is the law.

The disclosure form filled out by the whistleblower explicitly referenced both to the Privacy Act and the IG Act as the legal authorities governing the processing of the whistleblower complaint.

Moreover, the signature line on the form itself explicitly informed the whistleblower that his or her identity would be kept strictly confidential, expect under very limited circumstances. This guarantee stated: “I understand that in handling my disclosure, the ICIG shall not disclose my identity without my consent, unless the ICIG determines that such disclosure is unavoidable during the course of the investigation.”

Next stop, the federal obstruction of justice laws. It is well known that the government uses confidential informants every day to build criminal cases. The term “confidential” has meaning and protects the identity of informants every single day.

If there was any doubt that the laws and regulations protecting the “confidentiality” of confidential informants also covers whistleblowers, that debate ended in 2002. In that year Congress explicitly amended the obstruction of justice laws to protect whistleblowers.

This is what the law says, word-for-word: “Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing information to a law enforcement authority any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more then 10 years, or both.”

The Trump-Ukraine whistleblower falls within this statute. She or he reported information to a federal law enforcement agency that was believe be true and related to the “possible commission” of “any” federal offense.”

Revealing the identity of the whistleblower would unquestionably violate this law. First, revealing the identity would fall under the definition of “any action.” It would also be “harmful,” as his or her right to privacy in being the whistleblower would be lost forever.

Moreover, it would interfere with his or her livelihood, as unmasking a whistleblower does in every case. But in the case of a CIA agent (the job the whistleblower apparently holds), revealing the identity would have a devastating impact on the whistleblowers ability to work as an agent, most likely making overseas assignments impossible, and blocking the whistleblower from performing many of the most challenging and interesting assignments available to other agents.

Obstruction of justice is the law.

Finally, there are numerous judicial decisions upholding the right of whistleblowers to confidentiality under numerous laws, and also finding that identifying a whistleblower can constitute an adverse employment action. The courts simply applied common sense to the clear statutory mandates to numerous laws, similar to the Privacy Act, the Inspector General Act and obstruction of justice laws.

The goal of unmasking the whistleblower is good old-fashioned retaliation. “Shoot the messenger.” Destroy the whistleblower’s career. Intimidate other witnesses from stepping forward. The good news is that Congress figured out these ill-motives years ago, and outlawed them. It’s the law.

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