Justice Roberts Rightly Refused to Out the Ukraine Whistleblower

During a key moment in last week’s Senate impeachment trial, Chief Justice John Roberts rejected a question posed by Sen. Rand Paul, R-Ky., which, if read aloud, would have named the anonymous CIA whistleblower whose tip regarding President Trump’s infamous phone call with Ukraine’s president last July triggered the investigation that led to impeachment. 

When Chief Justice Roberts announced, “The presiding officer declines to read the question as submitted,” Senator Paul walked out of the Senate chamber and held a press conference publicly identifying the whistleblower. He did so without regard to the fact he was breaching the absolute confidentiality that is the right of all whistleblowers. Then Sen. Lindsey Graham, R-S.C., doubled down, announcing that the Senate Intelligence Committee would call on the whistleblower to testify. Sen. Graham told Fox News, “Why is it important? I want to know how all this crap started.”

Members of Congress might do well to consider the huge double standard regarding whistleblowers. In the private sector, merely “outing” someone who blows the whistle on corporate misdeeds is illegal. Why then do employees who work for the federal government lack similar protections?

Merely attempting to identify a whistleblower in the business world is unlawful under certain circumstances. In December 2018, a New York banking regulator fined Barclays $15 million because Chief Executive Officer Jes Staley tried to unmask the whistleblower who prompted the probe. Regulators in London imposed a $1.5 million personal fine on Mr. Staley solely for his attempt to identify the whistleblower. New York’s financial regulator wrote that Mr. Staley’s action “exposed the bank to risk and created an atmosphere in which employees might doubt that it was safe to escalate an issue of concern to the bank.”

In a 2014 U.S. Court of Appeals decision, an employee at oil services firm Halliburton contacted the Securities and Exchange Commission and complained about accounting irregularities. When the company received notice of the SEC’s intent to investigate, its general counsel notified colleagues of the whistleblower and publicly identified him. The court concluded that this action violated federal law, stating: “When it is the boss that identifies one of his employees as the whistleblower who has brought an official investigation upon the department, as happened here, the boss could be read as sending a warning, granting his implied imprimatur on differential treatment of the employee, or otherwise expressing a sort of discontent from on high.”

Government agencies have likewise supported protecting whistleblowers’ identities. In 2012, then U.S. Labor Secretary Hilda Solis announced the formation of the Whistleblower Protection Advisory Committee. This committee drafted a set of recommended best practices for responding to whistleblowers and ensuring protection against retaliation. Those practices, which the Labor secretary announced weeks before President Trump took office, repeatedly stress the importance of maintaining the confidentiality of those who come forward. 

But whistleblowers employed by the federal government lack protection against having their identities revealed. The Intelligence Community Whistleblower Protection Act affords limited remedies for federal employees who suffer workplace reprisals such as termination or demotion because they blew the whistle. However, the law does not guarantee anonymity and whistleblowers who are publicly “outed” have no legal recourse.        

Lackluster protections of whistleblowers in the federal government are not a new phenomenon. The seeds for stifling federal employee whistleblowers took root before President Trump assumed office. In fact, the Obama administration criminally prosecuted nine people on charges relating to whistleblowing or leaks, compared with just three prosecutions in all prior administrations combined.         

It’s fortunate that Chief Justice Roberts elected to do the right thing and not publicly name the whistleblower in the impeachment trial. However, in light of over a decade of stepped-up scrutiny of whistleblowers by the executive branch and the plainly inadequate protections afforded to federal employee whistleblowers, Congress should take action. It should start by amending laws such as the Intelligence Community Whistleblower Protection Act to align with protections afforded by private sector laws proscribing any effort to unmask, identify or “out” a whistleblower. Safeguarding such confidentiality is critical in sounding the alarm on wrongdoing.

Gregory Keating chairs the whistleblower defense practice at law firm Choate Hall & Stewart LLP in Boston. He served two terms on the U.S. Whistleblower Protection Advisory Committee.