I know and respect Andrew, and I am sure that his concern for his client is genuine. I must disagree, however, that anonymity for his client, the Ukraine complaint whistleblower, is either legally available or appropriate at this stage of the matter.
No legal authority provides anonymity to whistleblowers who take their complaint to the Congress. As a foundational point, whistleblower statutes protect against retaliation to the person's employment status & in recent years that has been extended to security clearances./2
No whistleblower legal authority guarantees that the information provided by a whistleblower will be shielded from public disclosure or that the identity of the whistleblower will be shielded from people against whom adverse actions may be proposed as a result of the complaint./3
None of the following authorities authorize anonymity of whistleblower identities at all: The Whistleblower Protection Act of 1989, Presidential Policy Directive 19, the Military Whistleblower Protection Act of 1988, or Title VI of the Intelligence Authorization Act for FY2015./4
Only 2 relevant statutes speak to anonymity: the Intelligence Community Whistleblower Protection Act of 1998 and the Inspector General Act of 1978. Both state that the Inspector General shall not disclose the identity of the employee w/o the employee's consent, w/an exception./5
In both statutes, the IG can disclose the employee's identity if it becomes "unavoidable" during the investigation. And under the ICWPA, which is what this WB filed under, the IG can also disclose the identity to DOJ as part of determining if a criminal case will be brought. /6
It mostly makes sense for the IG to be able to keep the WB's identity secret during its investigation. As with all investigations there is a concern that witnesses will contaminate one other & in a WB scenario there is always the possibility of retaliation. /7
Again, however, the concern is that others in the govt could seek to take revenge against the WB - through improper personnel actions or clearance suspensions or revocations. The purpose of the protection is not to shield the WB from the general reactions of others. /8
And the protection of the WB's identity during the investigation stage is definitely not to shield the information being provided from scrutiny by govt officials or even the public in appropriate cases. /9
I say it "mostly" makes sense to shield WB identities during the investigation stage by the IG because in at least one way doing so is detrimental to the pursuit of the truth. Shielding the WB's identity from the person being complained about hampers the exploration of bias./10
Knowing the WB's identity may let the person being investigated inform the IG of specific bias that the WB has against them or explain reasons why the WB is incorrect in ways that can't be done w/o knowing who the WB is. So, shielding the WB's identity can hamper the truth./11
Thus, as a policy matter, there are both pros and cons to keeping a WB anonymous during an IG investigation. The current IG statutes favor WB anonymity during the IG investigation. The statutes don't say, however, that the anonymity continues once the IG has done its work. /12
Once the IG concludes its investigation & renders conclusions/submits a report, the WB's information will usually be acted upon in some way by the govt. Often this takes the form of proposing to punish/discipline someone else through a personnel, clearance, or criminal action./13
Once the WB's allegations move from the realm of the IG investigation to the realm of a. other forms of govt investigation (DOJ, IRS, etc.) or b. proposals for adverse actions against another person, several things happen. . . . /14
1. The IG's role has finished & so has the application of the statutory anonymity, which specifically applies only to the IG conducting the investigation, & 2. other legal principles gain force, such as due process, statutory protections, & rights of confrontation & discovery./15
This can be seen clearly in the ICWPA anonymity clause itself, which specifically states the WB identity may be disclosed to DOJ in the case of potential criminal charges. This is because it is understood that the criminal process will require disclosure of the WB identity./16
Similarly, if an IG report contains the WB information & is used to support proposals to punish an employee or revoke security clearance, the normal procedures in those processes ordinarily give a right to review all the information being relied upon to the employee./17
It would be contrary to the normal constitutional & statutory due process to w/hold the WB's identity from an employee facing discipline/loss of clearance. It also wouldn't further the goal of the anonymity rule -the employee isn't likely to be able to retaliate at that point./18
The logical conclusion from all the authorities, policy rationales, & considerations is that the anonymity conferred in the IG statutes lasts only as long as the IG investigation.Afterward it's not necessary to achieve its goals & other legal considerations are more paramount./19
This is further supported by the fact that tho the ICWPA allows WBs to bring complaints to Congress after the IG concludes, no congressional rule has an anonymity clause to apply to complaints. To the contrary, the rules of both Houses of Congress presume public proceedings. /20
There is simply no legal basis on which to base a claim that a WB is "entitled" to anonymity in a complaint brought to Congress after the IG has concluded. Neither do the policy considerations support an argument that such anonymity is appropriate in an impeachment proceeding./21
If media reports can be relied upon, there appear to have been some instances in the past when Congress afforded anonymity to witnesses testifying before it. Of course, that is a far cry from saying that it is required or mandated by law. /22
Congress has authority to make its own rules & could provide for anonymity for witnesses if it wanted.Presumably it has not done so to date because it would be considered contradictory to Congress's role of conducting the public's business as well as being largely unnecessary./23
It makes sense that Congress might do so for things like investigating drug cartels or the mob. But, like a criminal, discipline, or clearance case, an impeachment proceeding instead involves inflicting a specific adverse action on a specific person - the Presidential officer./24
And of course we all understand that an impeachment is a drastic action, overturning the democratic will of the people as expressed in our most sacred right - that of voting for our own leaders. /25
Taking this specific adverse action, affecting not just the individual involved (the POTUS) but also implicating the democratic rights of the people surely argues for full transparency of the information & persons involved, unless equally compelling needs dictate the contrary./26
Thus, as no legal requirement compels anonymity at this stage, there would need to be a compelling reason to justifying anonymity to a WB in the course of a Presidential impeachment. That reason has so far not been articulated, however. /27
