As the impeachment proceedings heat-up, and calls for the Ukraine whistleblower to be identified increase, there remains a fundamental question: Who has the legal responsibility to protect this whistleblower? The answer will surprise you!
There are very few laws mandating what the President, as part of his required and mandatory job duties, must perform. Guaranteeing that employees who make protected disclosures under the Intelligence Community Whistleblower Protection Act (“ICWPA”) are fully protected is one of them. The Ukraine whistleblower is a a federal employee covered under the ICWPA. He or she made a protected disclosure under the ICWPA. Thus, it is up to President Trump to fully and completely protect this individual. Here’s why: The ICWPA directs that “[t]he President shall provide for the enforcement of the [Act].” It is as clear and simple as that. The President “shall” “enforce” the whistleblower law that makes it illegal to retaliate against intelligence community whistleblowers.
Every intelligence community whistleblower, whether they be a Democrat, Republican or Independent, is entitled to the same protection from the President. In the case of the Ukraine whistleblower, the law does not permit the political implications of the whistleblower’s disclosure to have any impact on the mandatory duty of President Trump to fully “enforce” that whistleblower’s right to be free from any retaliation. The President is required to put his biases or self-interest aside and defend the right of intelligence community whistleblowers to report abuses of authority. This includes wherever those abuses are committed, including the Oval Office. Under the ICWPA the buck stops with President Trump, impeached or not.
Unlike other whistleblower laws which give the federal courts or independent agencies, like the Merit Systems Protection Board or the Department of Labor, the authority to protect whistleblowers, the ICWPA places that solemn duty directly on the shoulders of the President. It is the unique legal responsibility of the President. The President must ensure that the identity of the intelligence community whistleblowers who file complaints with the Inspector General pursuant to the Inspector General Act, are fully protected. It is the President who must ensure that every person within the executive branch of government protect the job security of ICWPA whistleblowers. It is the obligation of the President to punish those who fail to do so.
The ICWPA anti-retaliation law is not limited simply to preventing whistleblowers from being fired. The law defines the types of “adverse action” the President must shield whistleblowers from, including “any change in working conditions.” In the case of the Ukrainian “quid pro quo” whistleblower, the catastrophic impact on the whistleblower’s ability to perform his or her job duties that would be triggered by violating his right to confidentiality is obvious. This would include undermining his or her ability to work oversees, be promoted to a covert agent (if not one already), or effectively interact with employees in the White House.
Furthermore, breaching the confidentiality of whistleblowers is well established as an “adverse action” under whistleblower law. Federal courts and administrative agencies as divergent as the SEC and Department of Labor have ruled that revealing the name of a whistleblower is an adverse action. Anyone with experience working with whistleblowers knows that once their identity is revealed, their working conditions will never be the same, and they will have a target on their back for the rest of their careers.
The procedures applicable to the Ukraine whistleblower actually informed the whistleblower, in writing, that he or she could file a confidential complaint to the Inspector General. The actual form submitted guaranteed this right. Once the complaint was filed and accepted by the Inspector General, the whistleblower protections afforded under the ICWPA kicked in. As a matter of law, it became President Trump’s obligation to “enforce” the ICWPA and ensure that the Ukraine whistleblower suffer no retaliation. It became the President’s non-discretionary duty to ensure the whistleblower suffered no harm. This may be hard to believe, but the law is the law.
Given the highly public attacks on the whistleblower emanating from the White House it is now incumbent upon President Trump to instruct all employees within the federal government to comply with the ICWPA. He must take steps to have his Congressional supporters, “stand down” and stop their continued drum beat to “out” the whistleblower. Regardless of where you stand on impeachment, the President must enforce the requirements of the ICWPA and protect the whistleblower.
When Donald Trump signed onto the job of President, protecting intelligence community whistleblowers became one of his few mandatory job duties. Like other employees who work for the taxpayers, he many not like all of his required jobs. Like other employees he may find some parts of his job difficult or distasteful. But he has no discretion in this matter. It is a requirement. He must ensure that the whistleblower is not retaliated against, that the whistleblower’s identity remains confidential, and that the whistleblower can continue in his or her career, free from stigma. He must hold those who retaliate accountable. That is part of the job he wanted. That is the job he must perform.
Copyright Kohn, Kohn & Colapinto, LLP 2019. All Rights Reserved.
