Trump’s goal of unmasking whistleblower faces legal hurdles

Ryan Teague Beckwith and Steven T. Dennis
Bloomberg News

Washington – President Donald Trump says his impeachment trial should deliver on a goal he’s nurtured for months: unmasking the whistleblower who started it all. But that would pose legal and ethical challenges that would be hard to overcome.

Federal laws promise anonymity for workers who step forward with alleged wrongdoing. In this case, a government employee – reportedly a CIA analyst – challenged the propriety of Trump’s request to Ukraine’s new president to investigate Joe Biden and other Democrats.

A Senate demand that the whistleblower testify would probably be challenged in court as a violation of the law’s protections, and as a move that could put the unidentified person at risk while extracting only secondhand evidence of limited value. Lawmakers of both parties may share those concerns.

President Donald Trump

On top of that, Senate Majority Leader Mitch McConnell has made clear he’d like to dispatch quickly with the House’s articles of impeachment, ideally without calling any witnesses.

Trump may try to change McConnell’s mind. As recently as last week, the president said, “I wouldn’t mind a long process, because I’d like to see the whistleblower, who’s a fraud.” He complained in a six-page letter to Speaker Nancy Pelosi on Tuesday, the day before his impeachment by the House, that his lawyers weren’t allowed to “call and cross-examine witnesses, like the so-called whistleblower who started this entire hoax.”

Experts on whistleblower laws say disclosing the person’s identify, as Trump desires, would clash with protections from reprisal under the Intelligence Community Whistleblower Protection Act of 1998.

“Everyone knows that the whistleblower’s career will be devastated” if identified publicly, said Stephen M. Kohn, who has represented whistleblowers for more than three decades. “There is no doubt that this whistleblower will be attacked on social media vigorously and for years to come.”

Andrew Bakaj, a lawyer for the whistleblower, went further, saying in November that Trump’s attacks put his client “in physical danger.”

If the whistleblower is subpoenaed by the Senate, Kohn said, lawyers could ask a federal judge for a protective order limiting the testimony. That could mean the witness would be questioned behind closed doors, producing a transcript for the Senate that’s stripped of the person’s name and other identifying information.

Ironically, a strong legal argument for barring the whistleblower from testifying is one of Trump’s biggest criticisms: that the complaint is hearsay.

Kohn noted that confidential informants are rarely called to testify in court over tips that they didn’t have firsthand knowledge about because it would be legally inadmissible hearsay. As Trump and other Republicans have frequently noted, the whistleblower’s complaint consists entirely of secondhand accounts of White House actions.

Trump claims the whistleblower, working with Democrats, misrepresented the tenor of his “perfect” conversation with Ukraine’s new leader.

But the main facts asserted by the whistleblower were confirmed when Trump released a partial transcript of the July 25 phone call in which he asked Ukraine President Volodymyr Zelenskiy to “do us a favor” and look into Biden and a discredited theory that Ukraine – not Russia – interfered in the 2016 election and did so to help Democrat Hillary Clinton.

Apart from the legal hurdles, there are the political ones, as Republicans and Democrats in the Senate spar over whether to call witnesses.

Some Republican lawmakers say they want to question the whistleblower as well as House Intelligence Chairman Adam Schiff, Biden and his son Hunter, who had a paid position on the board of a Ukrainian energy company. It’s a list Trump invoked as recently as Thursday in a tweet.

Democrats have their own wish list of witnesses. Senate Minority Leader Chuck Schumer has asked for four witnesses to testify, including Acting White House Chief of Staff Mick Mulvaney and former National Security Advisor John Bolton.

“Trials have witnesses,” Schumer said this week.

Mulvaney and Bolton refused to testify in the House impeachment probe in deference to Trump’s order that current and former administration officials not cooperate. Trump could assert broad claims of executive privilege if they or other officials are summoned by the Senate.

Calling those witnesses – and a trove of withheld documents also sought by Democrats – would require at least four Republican senators to agree over McConnell’s expected objections.

“Once you get to the Senate, you’re really in a whole new world, and McConnell has the upper hand,” said Philip Bobbitt, an expert on impeachment at the Columbia University’s law school.

A bipartisan agreement to call witnesses could attract GOP senators who have occasionally bucked Trump, such as Mitt Romney of Utah, Susan Collins of Maine and Lisa Murkowski of Alaska. Collins has said she hopes Schumer and McConnell come to an agreement on the process for the trial.

Other Republican senators, including John Kennedy of Louisiana, have said they support giving both sides the opportunity to call witnesses and put on their cases – within reason.

If witnesses declined to testify, the Senate would need to subpoena them, get a federal court in Washington to approve a contempt charge and perhaps ultimately jail the witness while pressing the case in the federal Appeals Court and up to the Supreme Court, Bobbitt said.

He said federal judges would probably act quickly, but the process could take several weeks.

There’s also the question of how witnesses would testify.

During the trial of President Bill Clinton in 1998, Republicans initially wanted witnesses to testify live in the Senate chamber but settled for interviewing them under oath away from Congress and then showing long video clips to the Senate.

Witnesses were called to testify before the entire Senate in the trial of President Andrew Johnson in 1868 and in a number of impeachment trials of federal judges over the years, said Daniel Holt, an assistant historian with the U.S. Senate Historical Office.

Schumer has said he’d prefer live testimony but would try to negotiate a deal with McConnell.