It seems ludicrous that in an open society, a president could be impeached and possibly removed through a process that begins with a report by a bureaucrat whose identity is never formally revealed and who is immune from examination. After all, the impeachment process is an attempt to override the decision of the electorate as to who shall be president. It should not be undertaken, and certainly not consummated, without the fullest, most open process, including the possibility of investigating the origins of the process.
It’s true in theory that the “whistleblower” who set the process in motion might suffer adverse consequences from having his identity revealed. I say “in theory,” because the main consequence of revealing the identity of the anti-Trump whistleblower in this impeachment process is that he will never again have to pay for a drink or a dinner in Washington, D.C. He can dine out on his effort to take down President Trump from now until kingdom come.
But even if there were adverse consequences, this prospect should not enable him to preserve any degree of anonymity. Every important witness in this impeachment proceeding faces the possibility of blow back. The public interest in a thorough impeachment proceeding overrides the desire to make the process pain free for witnesses.
Democrats say they can prove their case against Trump without the whistleblower’s testimony. That’s probably true.
However, the president has the right to make his case. Here, as Andy McCarthy says, President Trump might want to argue that this impeachment is the product of a conspiracy between Democrats and their allies in the bureaucracy, particularly the intelligence bureaucracy, to paralyze and hopefully shorten the Trump presidency.
“Prosecutorial abuse” is not an ideal defense, but it’s a permissible one. With many of Trump’s defenses crumbling as the facts roll in, it may soon be among his best remaining ones. Indeed, it may resonate with the public which has already seen one attempt by Democrats to take down Trump outside the electoral process.
The fight by Democrats to keep the whistleblower out of the picture is almost certainly an attempt to short circuit this “prosecutorial abuse” defense and to protect certain impeachment leaders from embarrassing revelations. In any event, Trump’s congressional supporters should have the full opportunity to make the defense, including the right to examine the whistleblower.
There is, though, a statute that protects federal whistleblowers. Whether we like it or not, the bureaucrat who blew the whistle on Trump is entitled to whatever protection that statute provides.
Fortunately, it provides him none. The fellow who blew the whistle on Trump is not a whistleblower in the statutory sense. To quote Andy McCarthy:
Under [the relevant federal] statute, protected status is given to an official who reports on intelligence activities within the jurisdiction of the director of national intelligence. The statute does not apply to the president’s conducting of foreign policy, including his communications with foreign heads of state.
Here, the bureaucrat was blowing the whistle on President Trump’s Ukraine foreign policy, not on intelligence activities.
Moreover, even if this bureaucrat were a whistleblower within the meaning of the statute, he would not be protected from having his name disclosed by anyone other than the inspector general of the intelligence community. The statute does not bind other government officials, members of Congress, the media, or the public. The point of the law, McCarthy explains, “is to shield whistleblowers from reprisals (being fired, demoted, denied promotion, transferred to Anchorage, etc.), not from public identification.”
Thus, there is no reason, either in statute or in common sense, why the “whistleblower” whose report triggered the current impeachment process should not be publicly identified and examined. Reportedly, the whistleblower is Eric Ciaramella.
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