U.S. Sen. Rand Paul on Tuesday told reporters he “probably will” disclose the identity of the whistleblower at the centre of the impeachment inquiry into U.S. President Donald Trump.
In an interview with Fox News’ Bret Baier on Tuesday evening, Paul doubled down on the comments, saying he “may” disclose the whistleblower’s name and adding there is “nothing that prevents me from saying it now.”
In a complaint filed in August, an unnamed whistleblower alleged Trump had attempted to seek foreign interference in the U.S. election by asking Ukrainian President Volodymyr Zelenskiy to dig up dirt on his political rival, aspiring 2020 Democratic presidential candidate Joe Biden, and his family during a July phone call.
In September, a copy of the whistleblower complaint was released, acting as the catalyst for the impeachment inquiry.
Since the release of the complaint, several Republicans have called for the individual’s identity to be revealed, arguing that Trump has the “right to confront his accuser.”
Meanwhile, Democrats have argued that the whistleblower’s allegations have been corroborated by a number of witnesses and have cited security concerns over the release of the person’s name.
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Should the whistleblower be named? Does U.S. law protect them from being outed?
Here’s how it works:
The case for protecting the identity of whistleblowers
In an op-ed published by the Washington Post last month, lawyer Mark Zaid and his co-counsel, Andrew Bakaj, said identifying the whistleblower would “do nothing to undercut the validity of the complaint’s allegations.”
“What it would do, however, is put that individual and their family at risk of harm,” they wrote. “Perhaps more important, it would deter future whistleblowers from coming forward in subsequent administrations, Democratic or Republican.”
They say that if the lawful whistleblower system fails, it would encourage other individuals to illegally leak classified information to journalists to hide their identities and guard themselves from political attacks.
Matthew Lebo, chair of political science at Western University, told Global News that if the whistleblower were to be named, it would be “seriously scary” and would be “just another way we are allowing the rule of law to be broken.”
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He says the whistleblower statute is designed so that people don’t get away with breaking the law when there isn’t proper oversight.
“Having whistleblower protection means that those things can be brought to light and investigated,” he said.
“To intimidate such a famous incident of whistleblowing and that individual would just scare off the next people who might see illegal activity,” he said. “It would send a message that it’s not worth it, that the people who you may be blowing the whistle on will get away with whatever it is that they’re doing, and it could ruin your life for coming forward and saying so.”
He says the whistleblower should “certainly fear” what exposure could mean.
How are whistleblowers protected?
According to U.S. federal law, a whistleblower’s identity is protected under the Intelligence Community Whistleblower Protection Act of 1998.
The act requires the inspector general to keep whistleblower’s identity under wraps however, it does not stop the president, a member of Congress or anyone else from identifying them.
Stephen Kohn, a lawyer and author of The Whistleblower’s Handbook, says more than 50 laws protect whistleblowers.
However, Kohn says, when it comes to enforcing protections for intelligence whistleblowers, that responsibility falls to the president.
“This is unique,” he told CNN. “The reason they put the burden on the president was to protect critical national security secrets.”
Trump has made it clear he wants the identity of the whistleblower to be revealed.
As recently as Monday, Trump tweeted that the individual “must be brought forward to testify.”
Trump has not, however, outed the individual himself, claiming only that it is a man.
John McLaughlin, former acting director of the CIA, told NPR that federal laws do not prohibit the president from outing a whistleblower, in part because it was never considered to be a possibility before Trump was elected.
He says there is a long-standing deference to the protection of whistleblowers that has largely prevented federal government officials from naming them.
“But as with so many of our supposed laws, compliance depends largely on a sense of integrity and voluntary compliance,” he told NPR. “You just have to expect people to obey the law and the established practices, which of course, in this administration, has not always been the case.”
Will the whistleblower testify?
Democratic Rep. Adam Schiff, who chairs the U.S. House of Representatives’ intelligence committee, has said it is likely the whistleblower won’t testify in person, citing security concerns.
However, on Sunday, Zaid said his client would answer questions directly from Republican members “in writing, under oath and penalty of perjury” in a bid to stem escalating efforts to reveal the person’s identity.
In a tweet, Zaid said being a whistleblower is “not a partisan job, nor is impeachment an objective.”
“That is not our role,” he wrote, adding that Republican Rep. Devin Nunes, a ranking member of the House intelligence committee, had been notified of the offer.
Lebo, though, says he doesn’t think it is “necessary” for the whistleblower to come forward and testify.
“Pretty much all the aspects of the story that the whistleblower first brought to our attention have gone in front of congressional committees and have been corroborated by witnesses,” he said.
— With files from the Associated Press
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