“Intelligence, unlike law enforcement, is a small, closed private world,” says John Kiriakou, a CIA whistle-blower who spoke out about the Bush-era torture program on ABC News in 2007. He was later sent to prison under the Obama administration for giving the name of a covert CIA officer to a freelance reporter, who didn’t publish it. “I think for all intents and purposes, whoever [the whistle-blower is], his career is probably over.”
Unlike Drake and Kiriakou, it doesn’t appear the Trump whistle-blower has spoken with journalists or other members of the media, which likely protects them from criminal prosecution. That doesn’t mean, however, they are in completely settled legal territory.
It’s not entirely clear, for instance, how fully the Intelligence Community Whistleblower Protection Act shields people from retaliation, says Liz Hempowicz, the director of public policy at the Project on Government Oversight, a nonprofit that works to expose misconduct in the US government. “Retaliation protections that intelligence community whistle-blowers have are not very enforceable,” she says. “It’s a problem because on paper, they look pretty good.” The issue, in part, is that the protections rely a policy directive from the Obama administration, rather than a statute written by Congress.
Hempowicz hopes that as a result of the current complaint, Congress will step in and provide greater clarity about how whistle-blowers from intelligence agencies will be protected in the future. “The silver lining to all of this is that there is an appetite to address the deficiencies in the law,” she says. If the White House is “questioning if someone is even a whistle-blower—who followed all the proper channels—what is the incentive for anyone else to come forward?”
One thing working in the current whistle-blower’s favor, says Drake, is the amount of media attention the complaint has received. Any attempt by the Trump administration to retaliate will likely be met with significant scrutiny from both journalists and Democratic lawmakers. Drake credits media reports, including a lengthy investigation from Jane Mayer in The New Yorker, with helping to change public perception of his own case. The felony charges against Drake were eventually dropped; as part of a plea deal in 2011, he agreed to plead guilty to a single misdemeanor and served no jail time.
The downside of media attention, however, can already be seen in that New York Times report. Whistle-blowers often seek to remain anonymous, but it seems plausible that the author of the Trump complaint could eventually be revealed. “The whistle-blower shouldn’t even be part of the equation, now that the information is out there,” says Kiriakou. “We should be looking at an investigation, and what we’re seeing instead is people taking political sides.” Trump has called the whistle-blower’s complaint “just another political hack job.”
“We must protect those who demonstrate the courage to report alleged wrongdoing,” said acting DNI Maguire in Thursday’s hearing. Maguire also said he was unaware of the whistle-blower’s identity, thanks to a system that intentionally safeguards it. The Intelligence Community Whistleblower Protection Act requires those who report misconduct to submit their complaints to the inspector general of the intelligence community, who is currently Michael Atkinson. If deemed credible, the complaint is then passed on to the DNI, who passes it to Congress. In that entire chain, only Atkinson and his office would know the whistle-blower’s identity.
Whether their name is released, the whistle-blower’s role in detailing Trump’s alleged misconduct likely isn’t over. The Democratic chairmen of the Committee on Foreign Affairs, the House Permanent Select Committee on Intelligence, and the Committee on Oversight and Reform announced Thursday they were seeking for the whistle-blower to testify before Congress, along with the individuals referenced in his complaint. The whistle-blower did not witness Trump’s July 25 call firsthand, but wrote that “half a dozen” US officials informed him about it.