Fact Check: No, It's Not Against the Law to Out a Whistleblower

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Posted: Nov 10, 2019 10:30 AM
Fact Check: No, It's Not Against the Law to Out a Whistleblower

Source: AP Photo/Susan Walsh

Oh, today is a great day. It’s always a good day to slam CNN and its trash coverage of this White House. Without fail, CNN's wrong. It claimed some donor gave then-candidate Donald Trump and his inner circle a key code to the trove of emails from Hillary Clinton’s campaign chair John Podesta that were released by Wikileaks before they were public. Wrong. The files had already been released by the site. CNN was wrong about how Trump fed koi fish while with Japanese Prime Minister Shinzo Abe. It’s almost impossible to screw up reporting of a photo opportunity—but CNN decided to do just that. The network also lied that Trump didn’t take any questions on his initial trip to China, a first since George H.W. Bush. Except that it wasn’t; Obama did the same thing. Oh, and what about the story that Trump knew about his son’s meeting with the Russians at Trump Tower in the summer of 2016? Sources said he knew. Trump’s former attorney Michael Cohen said so. Who was the super-secret source on that fake story? Oh, it was none other than Lanny Davis, Michael Cohen’s attorney, who then backtracked everything.

The Democrat-media complex is hard at work as it tries to attack President Trump on everything. It has reached the point where they’re just not believable, not that they were aces, to begin with—but we’re at a point where Trump could cure Ebola and the media would attack him for not finding a cure for AIDS. And after that trash attack, they would try to loop in some rejoinder about how he might have done this because he hates gay people or something. That’s also another lie; Trump is the most pro-gay rights president that Republicans have ever elected.

Right now, the latest rake-stepping incident with CNN involved legal analyst Jeffrey Toobin who thinks outing the Trump-Ukraine whistleblower is illegal.

Let’s Go to The Tape

First, some backstory is needed. In July, President Trump allegedly shook down Ukrainian President Volodymyr Zelensky by threatening to withhold military aid unless a corruption investigation was opened into Hunter Biden, who sat on the board of an energy company making $50,000 a month despite having zero experience in this field. The allegation for that arrangement is that Hunter was selling access to Obama officials. Yeah, that hiring occurred in 2014 when daddy Biden was vice president and quarterbacking ways to clean up corruption in Ukraine. Joey even bragged about threatening to withhold aid in order to get rid of a certain prosecutor he didn’t like. That’s a whole other can of worms that the 2020 Biden campaign has failed miserably to neutralize. 

Anyway, all of this came to light due to a whistleblower who is reportedly a CIA agent, a registered Democrat, a former National Security Council staffer in the Obama White House and had worked with a 2020 Democratic candidate. Said whistleblower also contacted Rep. Adam Schiff’s (D-CA) staff; Schiff knew about the contents of the complaint before it was officially filed. And Schiff’s minions helped the whistleblower find legal counsel, as well. Schiff is the chair of the House Intelligence Committee and one of the anti-Trump Democrats leading the impeachment proceeding based on this complaint and the July phone call. 

Trump wants to know the whistleblower's name. So do a lot of other people, but Toobin says that’s illegal (via Real Clear Politics): 

ALYSIN CAMEROTA: Hmm. Well, because the whistle-blower's identity is not public, he can say whatever he wants about the whistle-blower.

JOHN BERMAN: But there's no proof of any of that. I mean, what he just said is nonsense. There's honestly not a shred of evidence --

CAMEROTA: No reason to believe any of that is true.

BERMAN: -- any of that is true. And it's more than that, which is the president is asking to out a whistle-blower. Which in and of itself is something that should raise eyebrows.

CAMEROTA: Let's check in with our guests. Joining us now is CNN chief legal analyst, Jeffrey Toobin, and CNN legal analyst Laura Coates. Great to have both of you.

Jeffrey, is unmasking the whistle-blower intentionally illegal?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Yes, it's illegal. I mean, this is -- there's a Whistle-blower Protection Act. If this were a private company, the board would fire the CEO for behaving this way towards a whistle-blower. I mean, this is -- the whole whistle-blower idea is that they should have protections, anonymity, much less be attacked by the president of the United States.

And here, the whistle-blower is -- is factually irrelevant. Because the whistle-blower just said from the beginning, I have secondhand information. Go talk to the people who have firsthand. That's what's been done. So, I mean, this is just pure harassment...

Time for the Beatings

Uh, that’s not true. Not even close. First, maybe it’s more accurate to describe this individual as a so-called whistleblower since his report was based on second-hand information. 

“Yes, it's illegal,” declared Toobin. As Trump would say, “wrong.”

Via National Public Radio:

In recent days, President Trump and his allies have amplified their calls for the whistleblower who sparked the impeachment inquiry to be identified, presenting the question of whether it would be a crime for the president to unmask the anonymous whistleblower.

According to four former top federal government officials who worked in intelligence and national security, the answer is no.

"If Trump thinks he knows the name, he can come out and say it, and he's probably as protected as anyone is," said Robert Litt, former general counsel for the Office of the Director of National Intelligence under President Barack Obama.

Litt and several other legal experts who talked to NPR said Trump uttering or tweeting the name could in theory trigger an article of impeachment for retaliating against a whistleblower, but it would not run afoul of any federal criminal statutes.

Similarly, if a news outlet, member of Congress or member of the public outed the whistleblower, legal experts said, no criminal law would be violated.

"There is no overarching protection for the identity of the whistleblower under federal law," said Dan Meyer, a lawyer and the former executive director of the intelligence community whistleblower program. "Congress has never provided that protection."

It’s not The Daily Wire or The Federalist—all of which are great publications that you should read. It’s National Public Radio stabbing CNN in the back and twisting. Yet, as this pitch is flying by, let’s not forget that Democrats don’t even want this so-called whistleblower to testify because, apparently, he’s now irrelevant to the impeachment process. So, he’s not central to the investigation into the potential removal of a duly-elected president, but let’s protect his identity at all costs (via WaPo):

House Democrats are weighing extraordinary steps to secure testimony from a whistleblower whose complaint prompted their impeachment inquiry, masking his identity to prevent President Trump’s congressional allies from exposing the individual, according to three officials familiar with the deliberations.

The steps under consideration include having the whistleblower testify from a remote location and obscuring the individual’s appearance and voice, these officials said.

The efforts reflect Democrats’ deepening distrust of their GOP colleagues, whom they see as fully invested in defending a president who has attacked the whistleblower’s credibility and demanded absolute loyalty from Republicans.

And why is there such distrust? Republicans didn’t start this. There’s been distrust ever since Schiff brought this whole process into the bunker for the sake of controlling the narrative. Secret interviews, portions of transcripts selectively released to only fit the Democratic narrative. If this is an impeachment proceeding, then it needs to be fully transparent, the GOP needs access to all documents, and Republicans must be given subpoena power. Democrats learned from their Russian collusion myth peddling. Those open hearings blew huge holes through their cause, and Democrats coasted with this behavior on Ukraine for as long as they could prior to the House vote that made this left-wing wet dream of booting Trump a reality.

So, this goes beyond CNN being wrong about revealing a whistleblower’s identity. Trump can certainly do it. It’s not illegal. And just because Toobin and the legion of idiots that staff CNN say it is doesn’t make it so. This is a person who is part of what could be described as a prolonged coup attempt. We had the FBI use a political opposition research file that was financed by the Hillary Clinton campaign—the Trump dossier—to secure FISA spy warrants against former members of the Trump campaign. This was the basis for the Russian collusion myth. 

The dossier was also reportedly the “insurance policy” that was mentioned in texts between former FBI Agent Peter Strzok and bureau lawyer Lisa Page. Strzok reportedly signed off on the counterintelligence probe that became the investigation spearheaded by then-Special Counsel Robert Mueller. And how did that come about? Well, former FBI Director James Comey decided to deviate from long-standing FBI policy. He handed over memos he wrote about his meetings with Trump to a personal friend with the intention that they would be leaked to the press in order to get a special counsel probe initiated: mission accomplished. Top officials at the Department of Justice also discussed ways to invoke the 25th Amendment in order to boot Trump. There is a deep state. These people are not protecting our institutions by engaging in anti-Trump resistance. They're damaging them irreparably.

Oh, and did I mention that the so-called whistleblower’s lawyer had been tweeting about impeaching Trump and getting a coup rolling against this administration?

And the media keeps this crusade going by making false declarations, like saying it’s illegal to out a whistleblower and peddling straight-up lies about Trump, the Kremlin, and a collusion plot that never happened. Luckily, most people who watch CNN are either liberal morons who are beyond saving anyway or those who are in airports that are more concerned about catching their connecting flight. Toobin’s declaration about whistleblowers is false. It’s as wrong as thinking that chemtrails are real. If you want legal advice and it’s from CNN, look elsewhere.

Townhall did reach out to attorney Marina Medvin, who is one of the top lawyers in the Washington, D.C. area and Virginia. She also contributes legal columns to Townhall proper. Medvin was straight and to the point. The anonymity aspect that the Left and its allies in the media are treating as a holy grail is not applicable here. Now, what she offered was not legal advice, but she did note that the Whistleblower Protection Act of 1989, Intelligence Community Whistleblower Protection Act of 1998, and Whistleblower Protection Enhancement Act 2012 all have zero mentionings of anonymity. 

On a larger point about the impeachment push from Democrats, Medvin says, “we’re in the dark.”

“I do not understand the nature of the secretive proceedings. Thus, I cannot truly say which procedural rules, if any, apply to this situation. No one understands this because the rules are being made up as they go along,” she wrote in an email to Townhall. “Is it a court, a tribunal? If so, who is the judge? It appears that the judge and the prosecutor are one and the same, Adam Schiff.”

Now, peering through case law, she did note that whistleblower anonymity is grounded in courtroom proceedings only. And only if “a whistleblower is permitted to proceed anonymously if the whistleblower presents a sufficient showing of harm that outweighs counterbalancing societal interests in knowing the whistleblower's identity."

But this isn’t a courtroom hearing. It was up until recently a secretive impeachment inquiry that was, again, taken into the bunker to ensure Democrats were able to keep the narrative healthy and free from conservative media sniper fire. We would’ve had a field day, a good ole’ fashioned turkey shoot. Oh, sorry, Medvin added, “What does this have to do with a congressional backroom proceeding? Nothing, because it is not a court. Anonymity is simply inapplicable.”