Today, Explained - It's not easy whistleblowin'

Episode Date: October 2, 2019

The whistleblower’s attorneys say their client is in danger. That’s not unusual. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Another day, another opportunity to go to kiwico.com slash explained and take a look at their fun, engaging, creative projects for kids of all ages and to try them out for free. KiwiCo is trying to make learning about science, engineering, technology, art, math, super fun for the young ones. Kiwico.com slash explained. Whistleblowing is a big deal in the United States. It's such a big deal that it's enshrined in our laws. Even still, it can be really hard to file a whistleblower complaint. It looks like this current whistleblower had to jump through hoops to make sure the information reached the right people. Today, the New York Times reported that Adam Schiff, the head of the House Intelligence Committee, got a preview version of the whistleblower complaint. Not a full copy, but some kind of outline.

Not long after the story broke, President Trump was asked about it during a press conference with the president of Finland. So the whistleblower, according to this report, met with a member of Adam Schiff's staff. You've got it right there. You know it. I hate to say it's the New York Times. I can't believe they wrote it. Your response to the fact that- Maybe they're getting better. Your response to the fact that that happened and that Schiff may have learned some of what the whistleblower knew prior to the complaint. Well, I think it's a scandal that he knew before. I go a step further.

I think he probably helped write it. OK, that's what the word is. And I think it's I give a lot of respect for The New York Times for putting it out. Just happened as I'm walking up here. They handed it to me and I said to Mike, I said, whoa, that's something. That's big stuff. That's a big story. He knew long before, and he helped write it too. It's a scam.

It's a scam. A scam. The president of the United States is once again questioning the legitimacy of the whistleblower's report, a report that was completely corroborated by the White House's own transcript of the call President Trump made with Ukrainian President Zelensky. But this time, the president saying the Democratic head of the House Intelligence Committee helped write the whistleblower complaint. Compare that to what the acting director of national intelligence said about the complaint

in his testimony last week. I think the whistleblower did the right thing. I think he followed the law every step of the way. At this point, we don't know if Maguire was aware that the whistleblower had also reached out to House Intelligence about this complaint. Lizo, you cover politics at Vox. At this point, what do we know the whistleblower did? How many different ways did this whistleblower try and take this information up the chain? We know the whistleblower reached out to House Intel based on the New York Times report from today. And then we also know that prior to that, the whistleblower had reached out to the top attorney at the CIA who wound up passing the complaint along to folks at the White House as well as DOJ.

So the CIA's lawyer took the whistleblower's complaint to the person the whistleblower's complaint was about. Effectively, yes. She took it to somebody at the White House who works in the lawyer's office there, basically, to consult them and try to figure out if there was a reasonable basis for this complaint. And that does follow policy. So that wasn't totally crazy for her to do that. But as a result, people at the White House were informed kind of early on as this complaint was circulating that something was being brought up

against the president. Like the president knew that this was circulating? At the time, it's a little bit unclear. It was more just officials there knew, but presumably, since it was in the organization, we can assume that other folks there did too. And what happens with it? They were in the process of evaluating the complaint. So the deputy White House counsel who was looking at it consulted with the CIA attorney, and they brought it to other people at DOJ to try to get their take on it. And so the information was basically being passed along these different channels and evaluated

for how credible it was. And we know that eventually the DOJ decides not to act on this. What's the whistleblower doing at this point? Does the whistleblower know that this has been presented to the DOJ and the White House? The whistleblower does find out that the White House knows about this information, and it's kind of unclear how that gets transmitted. But the person does and becomes alarmed and decides to proceed with this other route of filing a formal whistleblower complaint to get these concerns heard. And this is inside the intelligence community? Yeah, that's inside to the inspector general of the intelligence community. But in the second version, when we get the actual report, the inspector general communicates it to the House and Senate intelligence committees.

And now that we've heard that Schiff may have already known what was coming, it all sort of makes sense that he pushed so hard to get the complaint. At the end of the day, we're going to need to get this complaint, and we are going to get this complaint. And we will, I think, expose those who are trying to stand in the way. And I think that's where we saw the conflict between how the acting director of national intelligence handled everything and how House Democrats wanted things to play out. This is why there was a big controversy and a hearing last week.

Right. Let me ask you this. Do you think it's appropriate that you go to a department run by someone who's the subject of the complaint to get advice or who is a subject of the complaint or implicated in the complaint for advice as to whether you should provide that complaint to Congress. Did that conflict of interest concern you? Mr. Chairman, when I saw this report and complaint, immediately I knew that this was a serious matter. It came to me, and I just thought it would be prudent to ensure that— I'm just asking if the conflict of interest concerned you.

Well, sir, I have to work with what I've got. And that is the Office of Legal Counsel within the executive branch. So Maguire is saying that he had to go through the executive branch. Schiff doesn't like that. Do we have any idea how the whistleblower was feeling during all of this? Based on the report, it seemed like the whistleblower wanted to do things kind of internally through the CIA, but then just got really startled by the way that that process was going. And what made the second process work, whereas the first didn't? The lack of direct, immediate involvement of the White House? The second one, I think it worked more effectively,

largely because of this communication to Congress. And I think once Congress knew about the existence of a complaint, you had pressure building from House Democrats and you had all these press reports come out about, you know, some kind of amorphous thing that was happening that ultimately led to everything being released. And that's the end of the story, right? Everyone totally respected the whistleblower's work and America lived happily ever after? Not exactly. President Trump has since really gone all out against the whistleblower. I think first going after this person by calling them a partisan hack. And now by trying to basically unmask them and say, we need to figure out who this person is. I want to know who's accusing me. I deserve to know.

Well, we're trying to find out about a whistleblower. When you have a whistleblower that reports things that were incorrect, as you know, and you probably now have figured it out, the statement I made to the president of Ukraine, a good man, a nice man, knew, was perfect. It was perfect. And all of this is especially inappropriate because of the Intelligence Community Whistleblower Protection Act that passed in 1998. What's the Intelligence Community Whistleblower Protection Act of 1998 say? That basically lays out the process for anyone who's interested in filing a whistleblower complaint. And since then, it's been added onto to kind of protect whistleblowers from potential retaliation that they could face for coming forward.

Okay. Has it been effective at doing that? It hasn't exactly been effective, and that's partly because of the way that the law works. So if you are retaliated against as a whistleblower, so if your manager tries to demote you or tries to take away your security clearance, it's kind of on you to fight back. So the recourse you have is to file a complaint about the retaliation,

but there isn't anything that kind of prevents that person from going after you in the first place. So I think the tough thing is the onus is on the whistleblower to protect themselves ultimately if something happens. You know why it was built that way? I mean, I think it's probably because in a lot of these law enforcement agencies, there's a huge emphasis on loyalty to your country, kind of loyalty to these institutions over loyalty to a lot of the individuals that might be, you know, kind of working on these

secrets. Yeah. And I wonder if that applies to loyalty to the president, especially because the president has made this outward sort of campaign to figure out who the whistleblower is. If President Trump does manage to figure out who the whistleblower is, where they work right now, where they live right now, how could he use that information? He could probably use it to kind of figure out who else is informing the whistleblower. What are this person's sources and how can I try to use that information to cover up other things that I maybe don't want people to know? So it's very valuable information, I think, for his own purposes of trying to control this narrative. But I think it could also be very harmful to this person and, you know, their professional future.

By saying, I want to know who this person is, by clearly planting that flag and who knows getting information, not getting information. Is the president violating just the spirit of the Whistleblower Protection Act or the actual letter of the Whistleblower Protection Act? Right now he's just violating the spirit of the law. And I think the biggest concern is that this could deter other people from coming forward. That if you are interested in being a whistleblower, now you're going to be scared of coming forward because you might get exposed. And that's something that came up when the acting director of national intelligence testified in front of the House Intelligence Committee. Sir, I'm worried that government employees and contractors may see how important this

situation has played out and decide it's not worth putting themselves on the line. McGuire said, Congresswoman, I think that's a fair assessment. I don't disagree with what you've said. So how is Congress responding to the president's violation of the spirit of the Whistleblower Protection Act? I think in the same way that we've seen Republicans respond to a ton of things that the president has done in the past, we're just hearing a lot of silence.

There's really not much being said to push back on him and to suggest that what he's trying to do is wrong. The rare example that we have is Chuck Grassley, who's a Republican senator from Iowa, who has said we should respect these whistleblower protections. We should follow the kind of the process of figuring out how valid these allegations are and give these the weight that they deserve. And what about Democrats? Democrats in general are appalled by what Trump is doing and definitely are trying to fight to protect the whistleblower in this instance. The House Intelligence Committee is supposed to meet with the whistleblower at some point.

And I think the concern about preserving anonymity has been basically the chief concern of that meeting. So we still don't know who the whistleblower is, and it seems like the whistleblower would prefer it remain that way. But the whistleblower's legal team has been out there talking, right? The whistleblower's attorney sent a letter Saturday notifying the acting director of national intelligence of serious concerns we have regarding our client's personal safety. It alleges that certain individuals are offering a $50,000 bounty for the whistleblower's identity and cites President Trump's own comments. Right.

The legal team has been out there as a more public face advocating in favor of this person's right to remain anonymous and also the argument that they're making about Trump really abusing his power to try to get information about a rival before 2020. The lawyer representing the whistleblower says he's worried about his client's safety.

Looking back at whistleblowers past, that's pretty much par for the course. More on that in a minute on Today Explained. Hello? Hey Desmond, it's Sean from Today Explained. How are you? I'm good. Your mom just told me that you got a new KiwiCo crate, and other people can do the same if they go to KiwiCo.com slash Explained, where they can learn more about KiwiCo's projects for kids of all ages and try them out for free. What is your new crate?

It's a trebuchet. Oh, a trebuchet. What's a trebuchet for the kids at home who don't know? It's like an ancient catapult type thing. Oh my gosh. You got a catapult in the mail? I guess. They said it was very dangerous.

Cool. So what are the materials you're building this trebuchet out of? Like some wood, string, and foam. Great. And once it's built, what will you launch out of it? A ping pong ball. Cool. Have you sought out any targets for your trebuchet and ping pong ball at this point? No. I do have some boxes I could knock over, though.

You think your parents are on board with you knocking over the boxes? Yeah, it's one of my boxes, so I'm sure they'll be fine. You're very considerate, Desmond. Thanks. So, Allison, you just wrote a book about whistleblowers. Is that for real? That is for real, Sean. It's for real. Yeah.

Imagine if the book about whistleblowing you've been working on forever published the day Nancy Pelosi announced she was opening up an impeachment inquiry into President Trump based on a whistleblower report. It's only because it was delayed by about two years. So the fact that I took so long to do it has been a positive thing. If that happened to you, you would be Professor Allison Stanger, author of Whistleblowers, Honesty in America from Washington to Trump. I've actually been working on it for seven years, if you can believe that. It's sort of sad. It went through five full manuscript iterations, had to cut hundreds of pages. It was really kind of the book manuscript from hell.

But am I allowed to say that on a podcast? You could say, fucking hell. I'm not going to do that. I asked her what inspired her to write about whistleblowing in the first place. Whistleblowing is really about as American as apple pie. We passed the world's first whistleblower protection law in 1778. And that is a response to a man by the name of Essex Hopkins. Hopkins was the first Commodore of the U.S. Navy, and he was removed from his post

for torturing British prisoners of war. There were 10 sailors on Hopkins' ship that filed the complaint. Two of the 10, there were two men by the name of Marvin and Shaw, had the misfortune of being Rhode Islanders, which meant Hopkins was a Rhode Islander. He could retaliate against them, so he had them immediately thrown in jail for libel. But Congress intervened not only with Rhode Islanders, which meant Hopkins was a Rhode Islander. He could retaliate against them. So he had them immediately thrown in jail for libel. But Congress intervened not only with the Whistleblower Protection Law, but they also paid Marvin and Shaw's legal fees. They legislated that all the records should be made available to the public. Without those records being made public, we would have never known about this incident. So even in these early stages of the republic, Congress had a sense that we need to have some

sort of safety measure for people to report abuses of power? It's interesting to read the original language, which really conveys the sense that you have an obligation, if you're a public servant, to report wrongdoing whenever you see it. I can even read you a passage from the law that conveys that. It's kind of in the stilted English of the time, but I think it's really easy. It says that it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds, or misdemeanors committed by any officers or persons in the service of these states.

So that's basically saying if you see it as an American, you're obligated to report it. So what's the best example of this we have after Commodore Hopkins in 1778? The obvious one is Daniel Ellsberg. Mr. Pentagon Papers. Yeah, Daniel Ellsberg revealed an administration that was lying to the American people about how the Vietnam War was going. I can no longer cooperate in concealing this information

from the American public. And obviously, when the American people are kept in the dark, democracy cannot function properly. You have to keep some secrets for national security purposes. I don't mean to downplay the difficulty of navigating that potential tension. But obviously, if the American people can't see what their government is doing, self-government becomes impossible. And that one, like Watergate, which came shortly thereafter,

involves a whistleblower going to the press, which makes them different from the current situation. How are they similar? The similarity between Watergate and the current situation is the implication of the attorney general. The attorney general of the United States is supposed to enforce impartial justice. And in both the Watergate situation and the current situation, the attorney general is really a partisan serving the president rather

than the cause of the rule of law. So that's one thing that's similar between the Watergate situation and impeachment and this current situation, but pales in comparison to the rhetoric and vitriol and the complete misunderstanding of the president's role as somehow serving the Trump brand rather than the U.S. Constitution. I don't think you see that in the Watergate years. In fact, part of what went on in Watergate is things were kept secret, and when they were exposed, they were so embarrassing and shameful that Nixon resigned. What you have in the current situation is a president who's shameless. The lawyer representing this whistleblower in this current situation is worried about the whistleblower's safety.

What's the worst thing that's ever happened to an American whistleblower that we know of? There's all sorts of examples. Maybe the best one is Bunny Greenhouse. Her life wasn't destroyed because she's too strong a person, but she's someone who blew the whistle on waste, fraud, and abuse in Halliburton contracts under the Bush administration. And she was a Department of Defense principal for reviewing contracting. She exposed what she thought was an immense conflict of interest. She was retaliated against. She lost her job. She was actually injured in her office

because someone set up a booby trap to intimidate her. What? What was the booby trap? I feel like I got to ask. Some kind of trip wire in her office that she tripped over is how I understand it. Oh, my God. Yeah, but I mean, there's all sorts of other examples of this kind of retaliation. Some of you don't even hear about because the standard pattern really in the intelligence community is for these complaints never to see the light of day. In part, simply because the intelligence community is based on secrecy. They have to keep secrets and legitimately, to keep our country safe. So the very idea of revealing secrets is anathema to that culture.

So the standard pattern you would see is that the complaint would get squelched rather than being turned over to Congress. In this instance, by some miracle, it happened. Edward Snowden, for example, at the time everybody said he should have complained up through the official chain about what he saw at the NSA. That's problematic because if he had complained to the NSA inspector general, we probably would have never known about his revelations because the man in charge of the NSA, Inspector General, at the time of the Snowden leaks, his name is George Lard, and he was removed from his position in 2016 for, guess what, whistleblower retaliation. Hmm. Getting back to this whistleblower, in the acting DNI's testimony last week, he called this current whistleblower situation unique and unprecedented over and over.

I am not familiar with any prior instances where a whistleblower complaint touched on such complicated and sensitive issues, including executive privilege. I believe that this matter is unprecedented. How else is this totally unprecedented than what's come before it? It's just unprecedented on every conceivable dimension. The whistleblower complaint indicates a cover-up of both a national security threat and a threat to democracy from within. The national security threat is the shadow foreign policy that the White House was running with Ukraine using the president's personal attorney, Rudy Giuliani, also the Attorney General William Barr, and now it seems even Secretary of State United States as administered by the State Department and for which funds are appropriated by Congress. That military aid had to be approved by Congress. So that's a national security threat. How can our allies and our enemies know what to expect from the United States when it speaks with two mouths, secretly and publicly?

Then there's the threat from the democracy from within, which is really straightforward. The president's celebration of the solicitation of foreign electoral interference. It's not hard to understand why that's not okay. Obviously, Americans should elect our leaders, not foreigners. So the intelligence community whistleblower is rightfully reporting this, but it's just part of a pattern of behavior that the intelligence community has noticed since Trump's election. James Comey's firing being another example of a member of the intelligence community blowing the whistle on Donald Trump, not through official channels, but by leaking his memos to the press. Thinking about this current situation we're in, we have the president trying to out the whistleblower and tracing that back to the very first instance of whistleblowing you talked about, this Commodore jailing his whistleblowers.

It just feels a little like America wants to have it both ways. We're proud of our long history of whistleblower protections, but we also have a history of blasting these brave people who speak truth to power. That's a great observation, Sean, because that is exactly the pattern that I write about in whistleblowers. I call it the paradox of whistleblowing in America. On the one hand, Americans celebrate whistleblowers. We think they're heroes. On the other hand, when time marches on and media attention focuses elsewhere, they pay a price, as I've already mentioned. So whistleblowing in America is not done lightly for these reasons. And it is really something,

once this current crisis is passed, that we could do better in legislating protection, say, in the national security realm. There's all sorts of things we could do. We could also legislate interpretations of the Mulliamans Clause so that it makes sense in the 21st century. But this distinctively American idea sometimes there's a gap between the ideal and the reality. Alison Stanger is the author of Whistleblowers and a professor of international politics and economics at Middlebury College in Vermont. I'm Sean Ramos from This Is Today Explained from Washington, D.C. Big thanks to KiwiCo, but also Desmond for their support of the show today. KiwiCo is offering Desmond, but also you,

a chance to try out their fun, engaging projects for the youth of today out for free. For free. They make projects for kids of all ages. Go to KiwiCo.com slash explained to find out more.