Tension in the Law: Confrontation Clause and Whistleblower Protection
[Credit for the Image: https://www.cnn.com/2019/10/07/politics/democrats-security-measures-whistleblower-identity/index.html]
Recently, a whistleblower from the intelligence community came forward with a concern regarding a phone call between President Trump and Ukrainian President Zelensky. (The whistleblower complaint, annotated). President Trump wants the whistleblower to come forward to publicly testify and not hide in the shadows of anonymity (What Donald Trump and Rand Paul get totally wrong about whistleblowers). The whistleblower’s disclosure sparked an informal impeachment investigation, which led the House to pass a resolution for the next steps of the inquiry. (House Passes Resolution Formalizing Impeachment Inquiry).
These recent events bring two legal concepts to the forefront of American Democracy: The Confrontation Clause and Whistleblower Protection. President Trump alleges that the whistleblower must come forward because, based on the Constitution, he has a Sixth Amendment right to confront his accuser. He is partially right. The Clause states the following:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
U.S. Constitution, Sixth Amendment.
Although the Clause gives President Trump the “right” to confront his accuser, it only applies in criminal proceedings and therefore does not extend to impeachment proceedings. (Legal Experts Say The Right To Confront Accusers Does Not Apply to Impeachment). Additionally, the Sixth Amendment is impacted because of who the “accuser” is. Here, the accuser is whistleblower. A whistleblower is someone who comes forward anonymously and files a formal complaint about concerns he sees in his place of employment. (What Donald Trump and Rand Paul get totally wrong about whistleblowers). The Whistleblower Protection Act (WPA) “protects Federal employees and applicants for employment who lawfully disclose information they reasonably believe is a prohibited personnel practice.” (Whistleblower Protection Act (WPA)). This includes “violation of laws, rules, or regulations, gross mismanagement or waste of funds, abuse of authority, or a substantial and specific danger to public health and safety.” (Whistleblower Protection Act (WPA)).
Generally, whistleblowers have some additional protections like protections against administrative retaliation like firing or demotion. (Whistleblower Protections, Explained). However, traditional whistleblower protections do not protect the intelligence community because of “concerns about releasing classified information.” (Whistleblower Protections, Explained). In response, the Intelligence Community Whistleblower Protection Act was created and, under the Obama Administration, codified to extend “protections against retaliations for intelligence officials.” (Whistleblower Protections, Explained). Despite what President Trump says (or tweets), whistleblowers are not required to be have firsthand information, just a “reasonable belief of a violation.” (Whistleblower Protections, Explained).
Whistleblower protections are important for government oversight and policy. As a society, whistleblowers should feel encouraged to come forward when they have a concern about something in the workplace. This is especially true for government workers. If whistleblowers feel that their voices can only be heard and taken seriously by coming forward and revealing their identity to the public, they may be less inclined to disclose concerns. Potential whistleblowers will feel less protected because they fear potential reprisal or retaliations for their disclosures. For example, whistleblowers may fear the end of their professional career or even death threats.(Trump’s allies want to ID the whistleblower, who may learn the price of speaking out). Senator Chuck Grassley echoed these sentiments when stating that the Ukrainian Whistleblower “should be heard and protected, respecting the whistleblower’s identity and confidentiality.” (GOP senator defies Trump: Ukraine whistleblower ‘ought to be heard out and protected’)
For the given reasons, the whistleblower can maintain his or her confidentiality and not be compelled to testify publicly because of whistleblower protections and the limited contours of the Confrontation Clause.