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Republicans push for whistleblower’s identity, but not naming names — yet

President and his son encourage media to out the whistleblower, while lawyers caution liability

Sen. Rand Paul, R-Ky., at a campaign rally Monday with President Donald Trump in Kentucky called for the media to expose the identity of the whistleblower whose complaint sparked the impeachment inquiry. (Bryan Woolston/Getty Images)
Sen. Rand Paul, R-Ky., at a campaign rally Monday with President Donald Trump in Kentucky called for the media to expose the identity of the whistleblower whose complaint sparked the impeachment inquiry. (Bryan Woolston/Getty Images)

President Donald Trump and his congressional allies have created an uneasy tension on Capitol Hill around a push to out the whistleblower whose report launched the House impeachment inquiry, in the days since a right-wing outlet reported a name and work history without direct confirmation.

Trump, at the White House on Sunday, discussed the details of the report but didn’t mention the name and twice added: “I don’t know if that’s true or not.” Rep. Jim Jordan, R-Ohio, mentioned a resume item at a Republican press conference Friday and on Fox News on Tuesday but didn’t say the name.

[Trump: ‘I don’t care’ about protections for whistleblower]

And Sen. Rand Paul, R-Ky., after he called on the media at a Trump rally to name the whistleblower, told CQ Roll Call on Tuesday that he “probably will” publicly name the person mentioned in the article, but declined to say if he knew for sure if it was correct.

“Well, you go ask him. You’ll go do some investigative reporting,” Paul said, turning to a group of reporters. “You all could go knock on the guy’s house. Raise your hand if you’ve knocked on the guy’s house and ask him if he’s the whistleblower.”

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Yet lawmakers have avoided repeating the reported name themselves for a mix of legal, institutional and political reasons, even beyond the possibility they might not be certain of the person’s identity.

Democrats as well as Sen. Charles E. Grassley of Iowa and other Republicans pushed back Tuesday against the calls to out the whistleblower, amid worries that the threat of exposure will discourage future whistleblowers and hurt congressional oversight efforts for administrations to come.

Andrew P. Bakaj, the whistleblower’s attorney, responded to Paul’s comments Tuesday with a legal threat of sorts, tweeting that the senator “will be personally responsible for anything harmful that happens.”

And in a heated atmosphere where Trump’s tweets have raised safety concerns for lawmakers and others, a lawmaker doesn’t want to be the one who brushed aside a whistleblower’s desire to be anonymous if the person or their family is harmed.

“This person’s life could be in danger, and I think they know that. And I think that’s not responsible,” said Sen. Angus King, I-Maine. “I find this disappointing because it’s going to be a disincentive for future people to come forward, whatever the issue is.”

The issue has become central to Trump’s self-defense as the impeachment inquiry accelerates in the House and Democrats prepare to take their case to the public. Trump said the “whistleblower should be revealed because the whistleblower gave false stories. Some people would call it a fraud; I won’t go that far.”

Donald Trump Jr., the president’s son, tweeted the name on Wednesday morning, along with a link to a story from the right-wing Breitbart about the whistleblower that relies on the name reported Thursday by Real Clear Investigations. The whistleblower’s lawyers immediately responded, saying they would not confirm or deny any name.

Trump has accused the mainstream media of covering up the identity, although the law allows whistleblowers to remain anonymous and there is no certainty that those publications have that information.

Trump, answering questions before departing on Marine One on Sunday, amplified the right-wing report but distanced himself from it and put the burden on the media to find out.

“But what they said is he’s an Obama person. It was involved with Brennan; Susan Rice, which means Obama. But he was like a big — a big anti-Trump person. Hated Trump. And they — they said terrible things,” Trump said. “Now, I don’t know if it’s true or not, but that was reported by some of the media, so you’ll have to find out.”

Attacking motivation

Jordan and other congressional Republicans say the whistleblower’s identity is critical to members of Congress judging the credibility during an impeachment inquiry. The Ohio Republican said on Fox News that the whistleblower “has a bias against the president.”

“One of the ways you determine someone’s credibility to determine what their motivation is, what kind of bias they have, is they need to be under oath answering your questions,” Jordan said.

Democrats counter that the secondhand information the whistleblower provided has been verified by other witnesses and so the person’s identity doesn’t matter to the impeachment inquiry.

Other senators say the identity is just a distraction from the reports that Trump withheld military aid to Ukraine in exchange for the country to announce an investigation into Democratic presidential candidate and former Vice President Joseph R. Biden Jr.

“I think they want to get the name out there, and then they’ll spend a week blackening this guy’s name and claiming that his grandmother voted for Roosevelt and he’s a bad guy,” King said. “And if he ends up getting vilified, threatened, compromise his job, what does that say to the next person? And it may be a totally different issue and a totally different administration.”

Some House Republicans contend that only House Intelligence Chairman Adam B. Schiff, D-Calif., knows the identity of the whistleblower and the public has a right to know. And they say Schiff is shutting down their questions about the whistleblower in closed-door depositions.

Legal liability

The law prohibits any kind of employment-related retaliation against an individual who follows the proper procedure, which could include the creation of a hostile workplace, said Robert Litt, a former general counsel for the Office of the Director of National Intelligence who is now with the law firm of Morrison & Foerster.

Those exposing the name of the whistleblower wouldn’t risk criminal prosecution, but could open themselves up to liability for any negative consequences for the whistleblower.

“One can argue back and forth about whether exposing the name itself is a kind of retaliation. What would happen is it would immediately expose the person to all kinds of attacks,” Litt said.

Democrats have linked Trump’s statements on Twitter to threats of violence. In April, Rep. Ilhan Omar, D-Minn., said threats on her life increased since Trump tweeted a video of the Sept. 11, 2001, terrorist attacks as criticism of some of the Muslim lawmaker’s comments.

Trump has repeatedly tweeted about the whistleblower, including an accusation that the whistleblower got information wrong and must be called to testify. Reuters reported that government personnel have been assigned to protect the whistleblower.

The lawyers for the whistleblower issued a statement as a warning to individuals and media alike along those lines Friday, “in light of the increasing and irresponsible speculation” about the person’s identity.

That statement from attorneys Bakaj and Mark S. Zaid points out that the whistleblower is “legally entitled to anonymity,” and that acting Director of National Intelligence Joseph Maguire said the whistleblower “acted in good faith and followed the law every step of the way.”

“Any physical harm the individual and/or their family suffers as a result of disclosure means that the individuals and publications reporting such names will be personally liable for that harm,” the attorneys wrote.

Litt said there’s a question about whether the whistleblower laws apply to the president himself, but any lawmakers who out the whistleblower would be “absolutely protected” because of the Speech or Debate Clause.

Grassley, the chairman and co-founder of the Senate Whistleblower Protection Caucus and author of many of the nation’s whistleblower protection laws, more than a month ago said that further media reports on the whistleblower’s identity don’t serve the public interest.

On Tuesday, Grassley called it “a pretty simple answer for me” on calls to identify the whistleblower.

“It would be intellectually dishonest for me to write laws, then say that someone can’t be protected,” Grassley said. “As far as me as a senator, I would say it’s up to the House of Representatives what they need to get from this whistleblower, if they need to get anything. But I don’t know why we have to get anything because this stuff is all out in the public anyway.”