Under the law, the president is responsible for ensuring whistleblowers are protected, but experts say the law never accounted for a president leading the attack on a whistleblower.
The whistleblower who revealed the now infamous call between President Trump and Ukrainian President Volodymyr Zelensky is vulnerable to retaliation due to the unique laws that govern intelligence community whistleblowers, according to experts.
The whistleblower filed a complaint following the July phone call in which President Trump asked the Ukrainian president to investigate his political rival and presidential candidate former Vice President Joe Biden and Biden’s son. But as an intelligence community employee, the individual has limited protection, said Debra D’Agostino, founding partner of the Federal Practice Group. This is because “the patchwork of laws that protect whistleblowers in the IC are significantly less powerful” than those for other federal employees.
In 2012, President Obama issued Presidential Policy Directive 19, which, for the first time, established some protections for intelligence community whistleblowers. Most of this directive was incorporated in the 2014 Intelligence Authorization Act, however it “did not codify Obama’s plans for some type of neutral enforcement mechanism,” said D’Agostino. “The act puts the president in charge of making sure there’s no retaliation, which renders the act pretty useless today given where the retaliation is stemming from.”
Irvin McCullough, national security analyst for the Government Accountability Project, a whistleblower advocacy group, noted that the provision in PPD-19 that allows intelligence community whistleblowers to appeal their cases is not codified. Under the directive, “if [whistleblowers] disagree with one [inspector general’s] determination they can appeal to the intelligence community’s inspector general who [would] convene an external review panel composed of inspectors general and they will consider the appeal request.” Therefore, he believes it “could be extraordinarily damaging” if the president rolled back the presidential directive.
Non-intelligence whistleblowers, who don’t deal with classified information, can go to the Office of Special Counsel, the quasi-judicial Merit Systems Protection Board, the media or Congress with their disclosures.
Even accounting for the differences in protections between intelligence community personnel and other government employees, this is an "unprecedented" situation because “an American president is threatening to retaliate against his own intelligence community,” said Allison Stranger, professor at Middlebury College and author of the new book Whistleblowers: Honesty in America from Washington to Trump.
She also said the 2012 Whistleblower Protection Enhancement Act excludes national security whistleblowers from protection, which makes them more vulnerable to retaliation and “all the more so when an American president is actively inciting it.”
President Trump has been attacking the whistleblower, who he’s referred to as a “spy.” He tweeted, “the so-called ‘whistleblower,’ represented a perfect conversation with a foreign leader in a totally inaccurate and fraudulent way” and there will be “big consequences!” Nonetheless, the call summary released by the White House itself appeared to confirm the accuracy of the whistleblower's description of the call.
On Tuesday, Trump tweeted that House Democrats, who have launched an impeachment inquiry, were perpetrating a “coup.”
During a press conference on Wednesday, House Intelligence Committee Chairman Adam Schiff, D-Calif., said Trump’s tweets about the whistleblower are a “blatant effort to intimidate witnesses and an incitement of violence."
D’Agostino said there needs to be a mechanism to protect whistleblowers against retaliation, but she does not believe additional federal laws would help in this situation, where the harassment is coming primarily from the president.
CORRECTION: A previous version of this story said non-intelligence whistleblowers can go to the Office of Legal Counsel. They can go to the Office of Special Counsel.