SALT LAKE CITY — The anonymous whistleblower whose complaint sparked an impeachment inquiry of President Donald Trump could be a prized witness for the House Intelligence Committee, but must navigate a complicated legal framework to do so without facing retaliation.

California Representative Adam Schiff, who chairs the committee, hinted that such a meeting was in the works this Sunday on ABC “This Week,” saying he expected to hear from the whistleblower “very soon.”

An attorney representing the whistleblower, who reported that Trump asked Volodymyr Zelenskiy, president of Ukraine, to investigate Democratic presidential candidate Joe Biden and his son Hunter Biden, had argued that anonymity was essential to protect his client.

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Trump has responded to the complaint by accusing the whistleblower of political bias and has stated he is trying to determine the whistleblower’s identity.

Federal whistleblower protections are supposed to shield government employees who report certain serious concerns from retaliation, but the laws are complicated and sometimes ineffectual. In order to invoke their rights, whistleblowers often face a lengthy judicial process that experts say is stacked against them.

“We call whistleblowing the sound of professional suicide,” Tom Devine, legal director of the Government Accountability Project, told WNYC in an interview.

The process is even more delicate for members of the intelligence community because they deal with classified information and because their revelations can impact national security and even politics. 

Who gets whistleblower protection and what does it mean?

Federal employees have the right to report certain types of misconduct without losing their jobs, getting demoted, or dealing with harassment from coworkers or supervisors.

The Whistleblower Protection Act of 1989 protects government employees, former employees and applicants who come forward with evidence of illegality, gross waste, fraud, mismanagement, abuse of power, general wrongdoing or a substantial and specific danger to public health and safety.

That law, considered a significant step forward at the time, was later found wanting, according to the Government Accountability Project, a non-profit organization in Washington, D.C. that provides legal representation to federal whistleblowers. The law didn’t protect employees who weren’t the first to report misconduct, who disclosed it to a coworker or supervisor, or who blew the whistle while doing their job.

The Whistleblower Protection Enhancement Act of 2012 addressed those shortcomings.

In addition, there are numerous laws that govern whistleblower practices and protections in specific circumstances or agencies, which can be tricky to navigate.

It can also be difficult to prove that retaliation was taken in response to shedding light on misconduct. Even with more comprehensive safeguards, whistleblower protections are not a perfect shield, experts say. 

Is seven years of litigation a best-case scenario?

Whistleblowers who are fired, demoted or harassed because of their revelations face a series of hurdles, a lengthy judicial process and potentially years of litigation to get their jobs back.

In 2003, a Washington Post reporter called Teresa Chambers, who was head of the United States Park Police at the time, to ask about safety in parks. She was honest and told the reporter that her department was understaffed and overworked, that she was worried either one of her officers or the visitors to the parks would be hurt.

Chambers was then harassed by her superiors and fired shortly thereafter, according to the Center for Investigative Reporting.

She decided to fight for her job, filing a lawsuit. Seven years later, she prevailed. She was reinstated to her job and received back pay.

“She was an example of success, but she was also an example of why it doesn’t work.”

For most whistleblowers, the path does not lead to such vindication.

“She stands as a false beacon of hope for thousands,” explained Paula Dinerstein, general counsel at Public Employees for Environmental Responsibility, the non-profit that represented Chambers. “She was an example of success, but she was also an example of why it doesn’t work.”

A judicial system that’s stacked and backlogged

Dinerstein explained that in most cases, her organization tries to talk people out of whistleblowing, arguing that the best way to raise concerns is anonymously.

When a federal whistleblower like Chambers is fired, they can either take their case to the Office of the Special Counsel (an independent federal agency unrelated to the Mueller investigation) or to an administrative judge. The administrative judges “are not known for ruling in favor of employees,” said Dinerstein.

If necessary, the whistleblower can then appeal to the Merit Systems Protection Board, which consists of three members appointed by the sitting U.S. president, and from there to a court of appeals.

However, this is not currently an option. The Trump administration has yet to successfully appoint new members to the board, interrupting the process. At the end of 2018 there were 1,800 cases pending. Some whistleblowers are trying to appeal straight to the court, which Dinerstein says is a whistleblower’s best shot because the judges are seen as less biased.  

Intelligence whistleblowers are the most vulnerable

In the intelligence community, whistleblowers must follow a strict process fraught with risk. Revealing classified information is illegal. Doing so outside the proper channels is not protected under the Intelligence Community Whistleblower Protection Act and can result in criminal prosecution.

According to the Washington Post, there are four steps that an intelligence community employee must go through to report misconduct:

  • They submit a complaint to their inspector general.
  • The inspector general then has 14 days to review it and determine how quickly they need to act.
  • If the complaint is deemed credible, it is sent to the director of national intelligence who has seven days to forward the information to the congressional intelligence committees.
  • If the inspector general doesn’t find the complaint credible, the whistleblower can go straight to Congress, but has to “seek guidance” from both the inspector general and the director of national intelligence in order to do so in a secure way.

There is an inherent risk in the process, which requires whistleblowers to report first to the inspector general for the institution “that’s allegedly engaged in the misconduct,” said Devine of the Government Accountability Project. “They can’t blow the whistle confidentially or anonymously,” at least with regard to their direct employer.

“To me this isn’t really a whistleblower law, it’s like turning yourself in,” Devine said.

Even when whistleblowers follow the protocol, they risk personal blowback beyond the workplace.

In this file image made from video released by WikiLeaks on Oct. 11, 2013, former National Security Agency systems analyst Edward Snowden speaks in Moscow.
FILE - In this file image made from video released by WikiLeaks on Oct. 11, 2013, former National Security Agency systems analyst Edward Snowden speaks in Moscow. | Associated Press

The story of Thomas Drake, a high ranking National Security Agency official, is often used as a cautionary tale. Drake informed the Defense Department inspector general when he believed the NSA was violating citizens rights and committing fraud, and was met with lawsuits and charges under the Espionage Act, according to Politico.

Edward Snowden, a former NSA contractor who leaked classified documents revealing surveillance programs, told the Guardian that watching Drake’s experience taught him not to trust the legal process.

“The sad reality of today’s policies is that going to the inspector general with evidence of truly serious wrongdoing is often a mistake. Going to the press involves serious risks, but at least you’ve got a chance,” Snowden told the publication. 

What does this mean for the Ukraine whistleblower?

The whistleblower who filed a report with concerns about President Donald Trump’s call to Ukraine President Volodymyr Zelenskiy went through the proper channels and should, in theory, be protected.

The whistleblower’s attorney believes revealing his client’s identity would compromise that protection. As he explained in a public statement, “This will place this individual in a much more dangerous situation, not only in their professional world but also their possible personal safety,” according to the Wall Street Journal.

In an audio recording released last week by the Los Angeles Times, President Trump said, “You know what we used to do in the old days when we were smart, right? The spies and treason, we used to handle it a little differently than we do now.” In addition to trying to determine the whistleblower’s identity, the president has also stated that he wants to interview the whistleblower.

If this whistleblower’s identity is revealed, and they suffer retaliation, future government employees seeking to shed light on wrongdoing may think twice.