Impeachment, Ukraine

The Real Witch Hunt: Going After the Whistleblower

The president’s new strategy is reprehensible and dangerous.
by Kim Wehle
November 5, 2019
Featured Image
WASHINGTON, DC - OCTOBER 29: Rep. Jim Jordon (R-OH), speaks to members of the media outside a closed session before the House Intelligence, Foreign Affairs and Oversight committees at the U.S. Capitol on October 29, 2019 in Washington, DC. Lt. Col. Alexander Vindman, Director for European Affairs at the National Security Council, is scheduled to testify in the impeachment inquiry of President Donald Trump. Also pictured are Rep. Lee Zeldin (R-NY) (L), and Rep. Kelly Armstrong (R-ND). (Photo by Mark Wilson/Getty Images)

Congressional Republicans and the White House got what they wanted last week: a full vote by the House of Representatives on a resolution formally giving the chamber’s imprimatur to the impeachment inquiry and setting forth procedures governing that process. The resolution allots equal time for members of each party publicly to question witnesses—in sessions of up to 45 minutes per side in the Intelligence Committee—and allows the ranking minority member to make written requests for testimony and, with the concurrence of the chair, to subpoena witnesses.

The White House continues to cry foul, with press secretary Stephanie Grisham falsely claiming that the resolution is “unconstitutional” and “fails to provide any due process whatsoever to the Administration.” President Trump echoed that sentiment in asserting that House Democrats “gave us absolutely no rights.”

But the person whose rights are in jeopardy in this process is not the president. It’s the whistleblower who has a target squarely on his or her back. House Democrats no doubt know this, and have properly shaped House impeachment procedures to maximize protection for that person while affording the minority party a meaningful voice.

This is a high-wire balancing act, given that some House Republicans appear hellbent on outing the whistleblower in an irresponsible effort to deflect from the established narrative relating to Trump’s July 25 call with Ukrainian president Zelensky. Republicans have yet to come up with a counternarrative to the president’s attempt to entrench his own power by employing the Ukrainian government to disparage an opponent in the 2020 election, Joe Biden. Trump’s dangling of nearly $400 million in promised military aid to Ukraine—which that country needs to stave off Russian aggression—is arguably beside the point. The office of the presidency is a privilege that holders can exercise exclusively for the benefit of the American populace, not for themselves.

So what about the fairness-to-Trump argument as a matter of law and process?

As I have explained before here in The Bulwark, the notion that due process attaches to the House impeachment process itself is dubious. Certainly, a president sitting at the apex of the federal criminal justice system and the U.S. military apparatus is hardly in danger of having his life, liberty, or property arbitrarily taken from him by an overbearing government, which is the essence of due process. Targets of grand jury investigations—whose liberty and lives (for capital crimes) are potentially at stake—do not get the rights Trump was granted by last week’s House resolution. Their advocates cannot attend the grand jury inquiry, cannot question witnesses, and certainly cannot request that other witnesses be called before the grand jury in an effort to convince grand jurors not to indict. The entirety of that process is secret and behind closed doors. Due process attaches to individuals once charges are brought—loosely speaking, the equivalent in criminal proceedings of the articles of impeachment.

To be sure, the impeachment process for President Nixon was marginally more inclusive. The House Judiciary Committee hearings took place from May 9 to July 30, 1974, with all but the opening day and the last few days (comprising the presentation and vote on the articles of impeachment) sealed. That said, Nixon’s legal team was present throughout the hearings. In that case, the Judiciary Committee adopted procedures that allowed the president’s counsel to submit written requests for testimony, which the committee would consider. Special prosecutor Leon Jaworski did not participate all.

Bill Clinton was initially granted fewer process rights than either Nixon or Trump. After receiving the report of Independent Counsel Kenneth Starr on September 9, 1998, the Judiciary Committee publicly released the president’s grand jury testimony along with supporting material from the report, including sexually explicit material involving White House intern Monica Lewinsky. This happened before the House authorized a full impeachment inquiry on October 8, 1998. The Judiciary Committee adopted a broader standard for impeachment than applied to the Nixon probe, as well. Instead of drawing the line at serious abuses of presidential power, as was the standard for Nixon, the Judiciary Committee defined high crimes and misdemeanors to include Clinton’s personal conduct that allegedly violated criminal law.

Team Trump is therefore wrong to claim that he is being treated unfairly.

Keep in mind, moreover, that the part of the Trump impeachment process relating to the Ukraine scandal will begin in the House Intelligence Committee, which will produce a report that will go to the Judiciary Committee. The resolution directs the Judiciary Committee to follow procedures that will be spelled out by the chairman of the Rules Committee, “including such procedures as to allow for the participation of the president and his counsel.”

Now that the impeachment inquiry has been formally approved by a vote of the whole House, will Republicans start cooperating with the Intelligence Committee investigation? Probably not, if their behavior so far is any indication. In the closed-door depositions, some Republicans—to the extent they attended at all—reportedly focused their questioning on the identity of the whistleblower rather than on wrongdoing by the President of the United States. The Wall Street Journal reports that, going forward, Republican lawmakers and conservative media outlets plan to focus their impeachment counterpunch on outing and attacking the whistleblower, beginning with speculation as to that person’s identity. The president’s own tweets from the last few days reflect that strategy. “Where is the whistleblower?” he tweeted on November 2. The next day: “Reveal the whistleblower.” The president’s allies have begun openly calling for the news media to “print his name”—a brazen invitation to harassment, flouting whistleblower protections.

This strategy is unsurprising, given that Trump and his allies—so far—have no answer to the damaging facts relating to the July 25 phone call. Only a couple of options are left in defense of Trump’s indefensible actions: either argue that it doesn’t matter if a president enlists a foreign power to investigate a political rival, or deflect attention off the president and onto an innocent scapegoat—the whistleblower.

The latter strategy, the one the president and his team have apparently selected, is both reprehensible and dangerous. The whistleblower laws have roots that go back to the earliest days of the republic—in fact, to even before the Constitution was adopted—and are designed to foster officeholders’ accountability to the people. If the people don’t know what government is up to, abuses of office are allowed to happen with impunity. By scapegoating the whistleblower to save a corrupt presidency, Republicans are sending a chilling message to other career public servants: serve your country at your own personal peril.

Under these circumstances, House Democrats have no choice but to maintain a tight leash on the process, to ensure that it doesn’t digress into a due process-less indictment of an innocent person who exercised legal rights for the benefit of the country. At this point, the focus must be on what the holder of the highest office did, by his own admission. Leave the whistleblower alone, please.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).