President Donald Trump has violated several little-known laws and regulations which specifically require the executive branch to protect whistleblowers in the intelligence community, according to attorneys dedicated to protecting whistleblowers’ legal rights.
The Washington, D.C.-based law firm of Kohn, Kohn & Colapinto released a timely–and increasingly relevant–explanatory overview of federal whistleblower protections on Wednesday based on the combined legal expertise of the firm’s eponymous partners.
“Federal employee whistleblower and confidentiality rights are frequently misunderstood,” a press release accompanying the release of the FAQ noted. “Some confusion about whistleblower rights to confidentiality has emerged as a media frenzy intensified surrounding the Intelligence Community whistleblower who filed a complaint alleging concerns about President Trump’s conduct in August.”
Attorney David K. Colapinto explained a great deal of that FAQ over email by elaborating on several federal whistleblower protections in the context of the alleged quid pro quo controversy–and Trump’s arguably unlawful response to those allegations–that’s led to ongoing impeachment hearings in the U.S. House of Representatives.
“Simply stated, President Trump can’t harass and retaliate against a whistleblower for weeks or months on end and say he is carrying out his duty to enforce the whistleblower statute,” Colapinto told Law&Crime in response to a series of emailed questions.
But it’s actually a good deal more complicated–and arguably quite a bit more damning for the 45th president and his allies–than that.
Colapinto explained the depth of the apparent violations here:
There are several statutes and regulations involved that form the framework of legal protections for [intelligence community] whistleblowers, not just one law. Rather than say the President violated one specific provision it’s more accurate to state that the President is not carrying out his duty under the [intelligence community] whistleblower statute to ensure enforcement of [intelligence community] whistleblower protections when you consider how the protections are provided by multiple laws [and] regulations: 50 U.S.C. § 3234, the [Inspector General] Act, Presidential Directive PPD-19…and other administrative orders and procedures that were implemented by [the Office of the Director of National Intelligence] and the [Intelligence Community Inspector General].
That’s quite a slate of potential violations viz. Trump’s months-long campaign to smear the whistleblower and unmask them.
One statute, however, is especially noteworthy here because Congress enacted specific whistleblower protections for intelligence community employees in 2014.
According to the primer produced by Kohn, Kohn & Colapinto, “the law specifically required that the President shall ensure enforcement of the Whistleblower statute” located at 50 U.S.C. § 3234(d).
“Congress modeled that law on another Whistleblower statute protecting FBI employees, 5 U.S.C. §2303, requiring that the Whistleblower statute be enforced by the President in a manner consistent with Whistleblower protections for regular civil service employees,” the explainer continues.
In other words: responsibility for protecting intelligence community whistleblowers lies directly with the president. The statute reads: “The President shall provide for the enforcement of this section.” Law&Crime asked Colapinto about Trump’s repeated efforts to have the whistleblower’s identity revealed. He said the following:
President Trump’s threats to unmask the whistleblower, or asking others to do so, is the exact opposite of providing for enforcement of the [intelligence community] whistleblower protections. It’s exacerbating retaliation on the whistleblower that’s prohibited by 50 U.S.C. § 3234 by changing their working conditions through repeated threats, subjecting them to ridicule, accusing them of treason and comparing them to spies who should be prosecuted or implying that they should be imprisoned or executed.
“The President has done all of those things and egged on his supporters to call out the name of someone suspected to be the whistleblower (without confirming the person’s identity which by law must be kept confidential) knowing full well that it will subject that person to a campaign of harassment,” Colapinto continued. “In fact, the whistleblower has received threats through their attorneys, according to press reports.”
Law&Crime previously reported on such threats against whistleblower attorney Mark Zaid and his colleagues.
Colapinto counseled a retreat from such threats and harassment:
In this situation in order for the President to faithfully execute the duties of his office, which includes providing for enforcement of the [intelligence community] whistleblower protections, President Trump must tell his supporters to stop harassing suspected whistleblowers, stop trying to unmask the whistleblower’s identity and order every person in the Executive Branch to fully enforce the whistleblower protections, including the confidentiality provision.
And if Trump doesn’t mount a drastic shift in course? Well, the political implications are fairly obvious: Democrats–and theoretically some Republicans–in Congress are likely to view Trump’s attacks on the whistleblower as the verboten stuff of “High Crimes and Misdemeanors.” But there could also be money involved.
“Notably, the Presidential Directive implementing the [intelligence community] whistleblower protections provides for ‘compensatory damages’ if there is whistleblower retaliation, including a change in working conditions,” Colapinto told Law&Crime. “Compensatory damages include monetary damages for emotional distress and harm to reputation which is very common in a whistleblower case, particularly when the whistleblower’s employer fails to provide protections and allows a campaign of harassment against the whistleblower to take place.”
The Kohn, Kohn & Colapinto FAQ, “Can Federal Employees Blow the Whistle Confidentially?” offers a wellspring of additional insight.
[Image via via Steven Ryan_Getty Images]
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