Right to Confrontation: The Latest Bogus Legal Argument over the ‘Whistleblower’

Sen. Rand Paul at a press conference on Capitol Hill, September 25, 2017. (File photo: Aaron P. Bernstein/Reuters)
Impeachment is neither a criminal trial nor a legal process, so the president does not have the constitutional right to confront his accuser.

As a constitutional lawyer, Rand Paul makes a good medical doctor.

I used to have occasion to say that in the Patriot Act debates, when the senator was wowing us with his Fourth Amendment theories. With impeachment upon us, he’s now onto the Sixth Amendment — specifically, the confrontation clause. It guarantees the right of cross-examination: In all criminal trials, the accused must be given the right to confront the accusers. Senator Paul has deduced that this must mean that the identity of the so-called whistleblower has to be revealed, lest President Trump be denied his constitutional rights.

Sigh.

Mind you, Senator Paul has been making this argument while he himself shrinks from outing the man at issue — whom we are reliably told is a 33-year-old CIA official, formerly tasked to the White House National Security Council as a Ukraine expert. There is but a small circle of people who fit that description, so Paul, like many in Washington, has known the name, to near certainty, for some time.

The senator makes the fair point that there is no legal barrier to the media’s naming the man. We can be confident that if a Democratic president had been accused of impeachable offenses, that would already have happened weeks ago (and, indeed, some right-leaning media sites have published the name).

Paul conveniently omits, though, that, as a senator, he has speech or debate-clause immunity. Even if there were legal confidentiality concerns here (there aren’t — I’ll get to that), he could broadcast the name without any liability. Naturally, he wants someone else to take the heat while he carps from the well-appointed cheap seats.

The inanity of the legal disputes surrounding the so-called whistleblower does not begin with Paul. It begins with misunderstandings about the concept of whistleblower itself.

As I’ve previously explained, the man in question may be a “whistleblower” in some common-usage sense of the word. Yet, he is not a whistleblower in the statutory sense. That’s the only sense that matters because the relevant statute is what triggers whistleblower protections. Under that statute, protected status is given to an official who reports on intelligence activities within the jurisdiction of the director of national intelligence. The statute does not apply to the president’s conducting of foreign policy, including his communications with foreign heads of state.

In this instance, the inspector general of the intelligence community (IGIC) chose to handle the man’s complaint as if it raised an intelligence-related “urgent concern,” as defined by the statute. The IGIC thus treated the man as if he had protected status. That was an error. The acting director of national intelligence correctly found that the complaint did not meet the statutory criteria, and he therefore declined to pass it along to Congress (as the statute mandates for complaints that do meet the criteria). But as he is new and understandably did not want to be perceived as throwing the IGIC under the proverbial bus, the acting DNI publicly conformed to the fiction that the man has protected status under the law. He does not.

As if that were not enough confusion, we next come to the brouhaha over anonymity. Contrary to what has become received wisdom (Democratic talking points peddled to the media tend to achieve that status), the law does not guarantee anonymity even to a statutorily qualified whistleblower. Instead, it calls for only the ICIG to keep the identity confidential. Even that, though, is an overstatement. The law says that even the ICIG may disclose the person’s identity if the IGIC (a) believes doing so is unavoidable under the circumstances, or (b) makes disclosure to the Justice Department in anticipation of a prosecution.

To be fair to Senator Paul, just-mentioned point (b) shows he was in the right ballpark, although way off the mark. If there is a prosecution in court, the Justice Department has various disclosure obligations that take precedence over a witness’s interest in remaining anonymous. Whistleblowers who are essential witnesses in criminal prosecutions do not get to remain anonymous. Paul’s problem, as we’ll see, is that impeachment is not a prosecution in court.

The law imposes this highly qualified confidentiality requirement only on the ICIG. It does not bind other government officials, much less members of Congress, the media, and the public. The point of the law is to shield whistleblowers from reprisals (being fired, demoted, denied promotion, transferred to Anchorage, etc.), not from public identification.

The posturing on this point has been patently political. If we were dealing with actual classified information that could compromise a significant national-security program, the media would breathlessly reveal it and lecture us about the public’s “right to know” newsworthy information. And when the whistleblower complaint first emerged, it was impeachment impresario Adam Schiff himself who insisted that the whistleblower had to be brought forward to testify. Natch, he did a 180 when it was revealed that the so-called whistleblower had huddled with Schiff’s staff before filing the complaint with the IGIC. (The point of the statute is to create an intra-agency review of complaints before Congress is notified.)

Of course, it has since come out that — I’ll be darned! — the “whistleblower” has ties to prominent Democratic Trump detractors. So now, the same Democrats who previously saw the man as a potential star witness have decided that his usefulness has run its course. Now that he is a potential liability, it suddenly has become unpatriotic to utter his name.

Meanwhile, Republican Trump defenders first took the position that the “whistleblower” was irrelevant because all his material revelations are hearsay. Since we have a transcript of the Trump-Zelensky call, and witnesses with first-hand knowledge about other pertinent events have testified, they reasoned that he was an unnecessary witness. But, as night follows day, once it became clear that Democrats want to hide him away, the GOP decided that the Republic’s survival hinges on his being exposed and interrogated.

Hence, Senator Paul’s Sixth Amendment meanderings.

The confrontation clause protects only the accused at a criminal trial. The point is that before one’s liberty is taken away, one must have the opportunity to question one’s accusers. Impeachment, however, is not even a legal proceeding, much less a criminal trial. It is a political proceeding. No one’s liberty is at stake; it is strictly about whether an official should be stripped of political authority — in the president’s case, of the executive power.

Moreover, because the Constitution wholly vests the process of impeachment in the House, and the conduct of impeachment trials in the Senate, those chambers have plenary authority over the respective proceedings. No court has the power to tell the House or Senate what quantum of due process must be afforded to an official in an impeachment case. No one can make Congress apply the Sixth Amendment.

Finally, even when the Sixth Amendment does apply (at a criminal trial), the confrontation it guarantees is the ability to cross-examine the witnesses the prosecution calls to establish its case. It does not extend to other people (e.g., tipsters, others who’ve provided hearsay information to investigators). It is very common in the investigative stage for police to receive damning information about a suspect from second- and third-hand sources. That information is investigated, which is how the police and prosecutors locate the first-hand witnesses who are called at the eventual trial. There is no right to confront witnesses the prosecutor does not call, even if they have provided accusatory information.

The president is not without arguments for why the so-called whistleblower’s identity should be disclosed, and why this person should be called to testify. I’ll address them in a separate column. But for present purposes: The so-called whistleblower is not a statutory whistleblower, and his anonymity is not protected by law; but the Sixth Amendment has nothing to do with impeachment, and it does not advance a claim that the “whistleblower” should be outed and questioned.

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