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With White House whistleblower, protection only goes so far

Since the September revelation that an intelligence officer assigned to the White House filed a whistleblower complaint about a telephone call between the presidents of the U.S. and Ukraine, considerable attention has focused on whether release of his or her name would be a crime or other violation of federal law. 

It’s not likely that identifying a whistleblower would violate any federal law.

It’s not likely that identifying a whistleblower would violate any federal law.

A new ABA Legal Fact Check posted Dec. 23 says that while identifying the whistleblower might be contrary to the spirit of the law, it’s unlikely that unmasking the whistleblower would violate any federal law. That does not mean, however, that the whistleblower is without some job protections.

For the past few weeks, online speculation has focused on a specific person as the whistleblower, although there has been no credible confirmation of his or her identity. The individual’s formal complaint, which surfaced publicly three months ago, eventually led to the U.S. House of Representatives impeaching the president on Dec. 18, setting the stage for a Senate trial early in 2020.

In filing the complaint, the whistleblower followed a process outlined under the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA). “This person appears to have followed the whistleblower protection laws and ought to be heard out and protected. We should always work to respect whistleblowers’ requests for confidentiality,” U.S. Sen. Charles Grassley, R-Iowa, said in an Oct. 1 statement.

The ICWPA stipulates only that the inspector general not disclose a whistleblower’s identity without his or her consent, unless the whistleblower determines that “such disclosure is unavoidable during the course of the investigation.”

The ICWPA itself offers no further protections for the whistleblower once the complaint leaves the inspector general’s hands, including any provisions barring reprisals or punishment. But other laws and policies protect the identity of the whistleblower from disclosure if the whistleblower follows the law and wants to protect his or her identity, including laws against workplace retaliation.

The lawyer for the White House whistleblower has asked that the person’s identity be kept anonymous for the protection of the individual and his or her family. Lawmakers and media have generally honored that request. But in terms of federal law, as the ABA Legal Fact Check points out, the whistleblower has more assurance that his or her job, rather than identity, will be protected.

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