Trump, impeachment, and the whistleblower: Three questions

As the public phase of the House impeachment inquiry begins, how will Congress balance rights of accuser and accused?

Jon Elswick/AP
President Donald Trump speaks to members of the media on the South Lawn of the White House Sunday, Nov. 3, 2019, in Washington, as he returns from a weekend trip to New York City. The president spoke about the whistleblower in the impeachment investigation into Mr. Trump's dealings with Ukraine.

The whistleblower whose complaint sparked the impeachment inquiry into President Donald Trump’s actions on Ukraine remains a figure of mystery and controversy as spotlights switch on and public hearings of key impeachment witnesses begin in the House.

Democrats say the whistleblower’s charges have been largely corroborated by others and that they are, in essence, no longer important to the process. They add that attempts to unmask the whistleblower are dangerous and that his or her anonymity is protected by law.

Republican defenders of the president say the whistleblower’s identity could weigh on the credibility, or lack thereof, of accusations that the chief executive of the United States abused his power for political gain. President Trump has called for the name to be made fully public, and the House GOP wants to call the whistleblower as a witness in impeachment proceedings.

Why can’t we know who the whistleblower is?

Under a variety of laws, many dating from the late 1970s, U.S. government whistleblowers are allowed to make formal complaints of waste, fraud, and abuse via a process that is intended to protect them against retaliation and ensure the charges are heard. In 2014 Congress voted to codify procedures that ensure members of the intelligence community can be covered, even if their complaints involve highly classified information.

This protects whistleblowers’ anonymity and careers, say many legal experts. Lawmakers in both parties have historically supported whistleblower protection, in part to ensure exposure of egregious examples of corruption. Willful and possibly illegal disclosure of names might discourage future whistleblowers from coming forward, say some legal experts.

“It is essential that intelligence officers who observe what they believe to be fraud, or illegality or abuse, believe that they can safely report through channels,” wrote Robert Litt, former general counsel to the Office of Director of National Intelligence under the Obama administration, in Lawfare.

In recent days a handful of conservative media outlets, including Fox News, have begun airing and publishing the name of a person purported to be the Ukraine whistleblower. Donald Trump Jr. has linked to one of these articles, while some Republican leaders, including President Trump and Sen. Rand Paul of Kentucky, have urged that the name be more widely exposed.

The whistleblower may have been alarmed by the nature of President Trump’s July 25 phone call with Ukrainian President Volodymyr Zelenskiy, but others who heard the call were not, according to Senator Rand. That makes it more of a policy dispute than anything else, the Kentucky lawmaker said in a Nov. 9 interview with CNN.

“When you have a disagreement on policy is that really whistleblowing?” he said.

Some conservative analysts also believe the laws protecting whistleblower anonymity are far from airtight. Statutory language dealing with intelligence community whistleblowers says only that they are protected from “personnel action” in retaliation for their disclosures. A broader 1978 law prohibits the inspector general from disclosing a whistleblower’s name without consent – but mentions no one else.

Doesn’t the Constitution guarantee the right to face your accuser?

Senator Paul and other conservatives insist that under the 6th Amendment to the Constitution, President Trump has the right to face his accuser – in this case, the whistleblower accusing him of abuse of office, among other charges.

Impeachment is not a criminal prosecution; it is instead a political judgment. In impeachment the accused is not at risk of being imprisoned or fined. The punishment is whether they should be stripped of political office.

Furthermore, the Constitution gives the House complete control over its impeachment proceedings, and the Senate complete control over its removal trial proceedings. No court can intervene.

Even in criminal trials the right to face an accuser is limited to the right to face witnesses called by the prosecution at an eventual trial. The whistleblower has not testified to House committees, and Democrats are highly unlikely to call him or her to appear in the Senate.

How will Congress balance the rights of accused and accuser?

Under the Constitution, impeachment is the first step in a process that could lead President Trump to be removed from office. While not a criminal sentence, removal is a serious stain on an officeholder’s reputation, and, in regards to a president, would overturn the results of an election. That means that in fairness the Congress must face a high bar to clear before it kicks a U.S. chief executive out of the Oval Office.

That is why the Constitution requires a supermajority vote in the Senate for removal.

Constitutional law, congressional precedent, and legal interpretation also hold that a president cannot be impeached over political differences, policy views, or speech. An impeachable offense is not, in fact, whatever a majority of the House deems it to be at any given moment, according to Harold Hongju Koh, a professor at Yale Law School.

“An impeachable offense must be a constitutional offense that negatively impacts our constitutional system by subverting basic political and governmental processes,” writes Mr. Koh in an explanation of the foundation and boundaries of impeachment at Just Security.

Impeachment is a process akin to the legal process of indictment – the bringing of charges. The Senate trial is where a more formal balancing act between the rights of accused and accuser takes place, as in an actual legal proceeding.

Chief Justice John Roberts Jr. is expected to preside over Senate proceedings, if the House votes to impeach. Each side will have a chance to present their own witnesses and cross-examine those of the opposition. President Trump will have the right to mount a defense with his own attorneys. Senate deliberation is likely to take place in private.

Unlike the House, in the Senate Republicans will be in charge. Majority Leader Mitch McConnell of Kentucky, seeing an impeachment trial as increasingly likely, called his caucus together and outlined basic procedures in October. In the impeachment trial of President Bill Clinton in 1999, Democratic and Republican senators hammered out an agreement on procedures. Senator McConnell has said he intends to attempt the same mutual approach.

“We have to do this trial in a fair and bipartisan way and I hope that Leader McConnell would obey those strictures,” said Minority Leader Chuck Schumer of New York.

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