theodore M I R A L D I mpa ... editor, publisher, writer. katherine molé mfa ... art director

Sunday, October 13, 2019


Washington Examiner

The identity of the person who filed the intelligence community whistleblower complaint that sparked the drive to impeach President Trump remains a secret. Democrats leading the impeachment campaign say his or her identity (for brevity, the whistleblower will hereafter be referred to as "he") must remain closely guarded. Advocates of whistleblower laws, such as Republican Sen. Chuck Grassley, agree.

The New York Times came under heavy criticism when it reported that the whistleblower is a CIA officer. "Any decision to report any perceived identifying information of the whistleblower is deeply concerning and reckless, as it can place the individual in harm's way," Andrew Bakaj, the whistleblower's lawyer, told the Times. "The whistleblower has a right to anonymity."

Does he? And does that right outweigh the rights of the public to know salient facts in a proceeding designed to lead to the impeachment and removal of the president?

The answer to the first question is yes, the whistleblower does have a right to anonymity. But the answer to the second question is no, that right does not outweigh other rights in an impeachment battle. Here are three reasons the whistleblower should be publicly identified:

1. The public has a right to know. There is no higher public concern than a debate that could lead to the president's removal. Simply put, everything should be public, because the public should be aware of everything that figures into the process. The whistle has not been blown on a mid-level bureaucrat using a government credit card for personal expenses. The whistleblower has accused the president of serious wrongdoing, and in doing so, has set off a proceeding of the highest public concern on Capitol Hill.

What were the circumstances of that accusation? Who gave the whistleblower the information he included in his complaint? Was that information cherry-picked? Did the whistleblower have contacts with others in the effort to bring the complaint against the president? Those are all valid questions for the public to ask and to which they deserve answers. The president is their president, not simply of a small number of privileged people at the Capitol.

Did the whistleblower act out of bias? If he did, does that matter? Explaining his reason for publishing the fact that the whistleblower is a CIA officer, the Times' executive editor Dean Baquet implied the paper wanted to defend the whistleblower against criticism. The Times reported that the whistleblower "works for a nonpolitical agency and that his complaint is based on an intimate knowledge and understanding of the White House," Baquet said, "because we wanted to provide information to readers that allows them to make their own judgments about whether or not he is credible." Baquet was right; it is important for journalists to give readers and viewers information about the president's accuser.

Finally, the president says he should have the right to confront his accuser. There is no such right written into the Constitution concerning impeachment. But in commonsense terms, Trump is correct. In a matter of such grave importance, a president should not have to face anonymously sourced charges.

2. The whistleblower set the terms of the debate. In his Aug. 12 complaint, he laid out the accusation that Democrats would later wholly adopt in the effort to remove the president. "I have received information from multiple U.S. Government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election," the whistleblower wrote. "Namely, he sought to pressure the Ukrainian leader to take actions to help the President's 2020 reelection bid."

The whistleblower included other information in his complaint, much of it alleged Trump actions involving the 2016 election, but the fact is, the whistleblower defined the controversy that would ensue as House Democrats followed his lead. There has been no more important player in shaping the case against the president. And that person is supposed to remain anonymous as the battle rages? The argument more or less refutes itself.

3. He's not Deep Throat. The most famous anonymous source in all of journalism is Deep Throat, the man who gave Washington Post reporters Bob Woodward and Carl Bernstein a number of leads in the paper's Watergate reporting. Woodward and Bernstein agreed not to reveal Deep Throat's identity, an arrangement that lasted for decades until 2005, when Mark Felt, who was a top FBI official during Watergate, revealed that he was the source.

The whistleblower is not a similar case. He has gone through official channels to accuse the president, working with a team of attorneys to produce a polished legal document outlining Trump's alleged wrongdoing. Journalists have not made any agreement to keep his identity a secret.

In addition, the whistleblower does not have absolute protection under the Intelligence Community Whistleblower Protection Act, which Democrats have cited to say the whistleblower's identity should remain secret. "The whistleblower has the right in the statute to remain anonymous," House Intelligence Committee Chairman Adam Schiff, who is leading the impeachment effort, said recently.

In fact, the law says: "The Inspector General shall not disclose the identity of the employee without the consent of the employee, unless the Inspector General determines that such disclosure is unavoidable during the course of the investigation ..." First, that part of the statute applies only to the inspector general; he is the only official specifically prohibited from identifying the whistleblower. And second, even that prohibition has a condition attached to it, that the inspector general can identify the whistleblower if it is unavoidable in the course of the investigation. Even if "course of the investigation" refers only to the inspector general's inquiry, the fact is, that investigation has now morphed into a House impeachment proceeding in which the chances of the whistleblower remaining forever anonymous are thin.

The Times made the case, correctly, that personal details about the whistleblower were a key part of judging the credibility of his complaint. We already know, if the Times is correct, that he is a career CIA officer with deep expertise in Ukraine and Central European affairs. But the public is entitled to know all the facts about the whistleblower and not just the facts as characterized by journalists, or certain facts judged relevant by journalists while others are kept hidden. Credibility goes both ways. Party affiliation, past political activities, job performance, and any connections to investigators are all things that merit proper public scrutiny.

Some will argue that the whistleblower cannot be identified because exposure would bring threats to his safety. It is true that people of great notoriety sometimes face threats. But it is also true that the whistleblower's name is already out there; if threats are coming, they are coming whether or not a news organization reports his identity. If much of Washington already knows who he is, which it does, then anonymity ceases to be about protecting the whistleblower and becomes instead a shield that protects him from scrutiny in an effort to topple the president.

In the big picture, it is the public's right to know that should prevail. It's time for the whistleblower to be identified.


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