What Happens To Federal Whistleblowers After They Raise The Alarm

Oct 9, 2019
Originally published on October 9, 2019 4:10 pm
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MARY LOUISE KELLY, HOST:

A whistleblower's existence can be a perilous one. The possibility of retaliation at work looms large, particularly so if the subject of your complaint has told his 65 million Twitter followers that you should be publicly exposed and questioned. That is how, this morning, President Trump attacked the whistleblower whose complaint has led to an impeachment inquiry.

Here to walk us through how the process is supposed to work is NPR justice correspondent Ryan Lucas. Hey, Ryan.

RYAN LUCAS, BYLINE: Hello there.

KELLY: So a simple question - if I am a whistleblower - an intelligence community whistleblower - do I have an ironclad guarantee of confidentiality?

LUCAS: The simple answer to that is, no, there is no guarantee of absolute confidentiality. The intelligence community inspectors (ph) general's office is, by law, prohibited from releasing the name or any personally identifiable information without the whistleblower's consent. There is a caveat that it can be disclosed if it's unavoidable in the course of an investigation.

Other laws related to whistleblowers have similar provisions, but experts say there's nothing in those laws preventing people not in the inspector general's office from disclosing the identity if they've learned it. Legal folks say that other laws could come into play, like the Privacy Act, but it gets a bit murky.

KELLY: Yeah. I'm thinking of some of the scenarios in this particular case. As we know, lawmakers want to talk to this whistleblower directly as part of their inquiry. Could that lead to this person's identity being exposed?

LUCAS: That's a really good question, and it's one that's particularly relevant given the fact that the president himself attacked the whistleblower and said that his or her identity, as you said earlier, should be exposed.

Now, it has to be said Congress, in the past, has passed laws to try to protect whistleblowers and their identities. Senator Chuck Grassley, a Republican from Iowa, has championed whistleblowers. He recently said that this whistleblower's identity must be protected. The concern is that exposing the whistleblower could have a chilling effect on future whistleblowers.

KELLY: Right.

LUCAS: There are potential repercussions for a member of Congress who exposes a whistleblower's identity. They could lose their committee assignments or be censured by the House. But there are no criminal repercussions, experts say. And these are very partisan times that we are living in. A member of Congress could, in theory, make the calculation that leaking or exposing the identity of this whistleblower would be worth the risk.

KELLY: So what kind of precautions are these three committees running the inquiry - what are they thinking about in terms of trying to - keeping - in terms of trying to keep that from happening?

LUCAS: Well, I posed a question like that to Kel McClanahan. He is a national security lawyer. He's represented whistleblowers. And he said that if he were representing this whistleblower, he would definitely try to shield the individual's identity from lawmakers during testimony. Here's what he said he might do.

KEL MCCLANAHAN: Do it over the phone. Do it behind a screen. Do it the way you would do a confidential informant in a criminal trial where you cannot trust - I hate to say it, but you cannot trust all the members of the committee to keep his identity secret.

LUCAS: Now, sources tell me that talks are underway between the whistleblower's legal team and lawmakers to sort out how to get lawmakers the information that they're looking for while protecting the whistleblower's identity. And I'm told that precautionary measures, such as the ones we just heard, are under consideration.

KELLY: OK. So to be clear, there's no requirement that if this whistleblower provides testimony that it has to be done in person.

LUCAS: No, not at all. Testimony could be submitted in writing. And in this instance, though, the issue is that lawmakers have made clear that they want to hear directly from him or her.

KELLY: OK. So they're figuring out in what format that might take place. OK. How is this all supposed to end for the whistleblower, Ryan? I mean, if this is as - when this finally concludes in whatever way it's going to conclude, what is that person's life supposed to look like?

LUCAS: Well, in an ideal world, the whistleblower submits the complaint, it gets investigated and the whistleblower remains anonymous, except to maybe their friends. Lawyers tell me that that does sometimes happen. The whistleblower just kind of carries on with his or her job like nothing happened.

Often, that's not the case, though. As McClanahan told me, whistleblowers in the federal government are generally viewed as an annoyance. In the intelligence community - very insular and secretive by nature - they can be regarded with hostility. And lawyers that I spoke with said agencies do sometimes retaliate against them. They can be reassigned, security clearances revoked. So there can be potential retaliation.

KELLY: NPR justice correspondent Ryan Lucas, thank you.

LUCAS: Thank you.

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