While there might not be legal implications, the move could hurt national security and have a chilling effect on future whistleblowers.
Sen. Rand Paul, R-Ky., has repeatedly said he might name the whistleblower of the Ukraine call that led to the House’s impeachment inquiry, despite concerns about national security and a chilling effect on other federal employees who may want to come forward with reports of potential misdeeds.
On Tuesday night on Fox News Paul said, “I can and I may” give a speech on the Senate floor to disclose the name. He, along with President Trump and Sen. Lindsey Graham, R-S.C., are among the few calling for the whistleblower to be named. “There’s no law that prevents me from mentioning the name,” Paul said. He agreed the whistleblower should have protection from being fired or jailed, but said the president has the right to face his accuser if there is a trial, under the Sixth Amendment of the U.S. Constitution. Paul also claimed without evidence that the whistleblower could be a material witness in a corruption case against the Bidens.
On Wednesday afternoon he blocked a resolution to reaffirm support for whistleblower protections. Additionally, he introduced a bill that “will expand the whistleblower act [and] would be made retroactive so Edward Snowden can come home to live in his own country. All he did was expose that his government was not obeying the Constitution” he said. “If the fake outrage here is really towards whistleblowing, why don’t we make it retroactive to defend the most famous whistleblower of all time.”
Observers said that while Paul may not face legal consequences if he exposes the whistleblower’s name, there could be other serious ramifications.
“Given the ‘speech and debate’ protections afforded to members of Congress, I think it's both possible for Senator Paul to violate a law by naming the whistleblower and also suffer no legal consequences,” said Liz Hempowicz, director of public policy for the nonprofit Project on Government Oversight. However, “Members of Congress like Rand Paul who are threatening to out the whistleblower are undermining the legal channels they created to prevent concerned citizens from leaking classified information to the press rather than go through internal channels.”
The whistleblower’s legal team wrote in a Washington Post Op-Ed last month that his or her identity is no longer relevant since the claims have been corroborated by impeachment inquiry witnesses. On Tuesday, they pushed back in response to Paul. “Members of the Intelligence Community, whether they are federal employees or government contractors, must follow the law in disclosing their reasonable belief of a violation of law, rule, regulation or an abuse of authority,” tweeted Andrew Bakaj, co-counsel for the whistleblower. “The call to have my client's identity disclosed will fundamentally harm a process that took decades to build. By extension, it will adversely impact congressional oversight.”
Irvin McCullough, national security analyst at the Government Accountability Project, echoed this sentiment. He told Government Executive that naming the whistleblower will add to the already “massive chilling effect” the president’s supporters have created. “Sen. Paul’s vow to release the whistleblower’s name undercuts so much work whistleblower advocates have done to strengthen Congress’ oversight over the Intelligence Community,” McCullough said. “Whistleblowers should feel safe when they report their concerns to Congress; they shouldn’t worry whether their disclosures are too partisan or powerful to report.”
Democrats and many Republicans such as Sens. Roy Blunt, R-Mo.; John Cornyn, R-Texas; Mitt Romney, R-Utah; Lisa Murkowski, R-Alaska; Shelley Moore Capito, R-W.Va.; Rick Scott, R-Fla.; Thom Tillis, R-N.C., and others have pushed back on identifying the whistleblower. Sen. Chuck Grassley, R-Iowa, long-time whistleblower advocate, told reporters on Monday that it’s “strictly up to the whistleblower,” to reveal his or her identity.
Paul’s claim that the whistleblower is a material witness, is “beyond unreasonable,” said Kel McClanahan, attorney and executive director of National Security Counselors, a public interest law firm that specializes in national security. “It’s guilty until proven innocent.” Even if the whistleblower were connected to something in Ukraine and/or the Bidens were corrupt, he told Government Executive “none of that in the best possible world for Trump is at all relevant to the impeachment inquiry.”
“[Paul’s] strategy is to ask questions and suggest negative answers, knowing full well that is not actually fact,” tweeted Mark Zaid, co-counsel. He said this comes from an episode of the cartoon South Park, “Yet these Qs undermine #whistleblower protection & may lead to physical harm/harassment of my client. This isn't a cartoon.”
This story has been updated to note that Sen. Paul blocked a resolution Wednesday to reaffirm support for whistleblower protections.