Trump, Not the Whistleblower, Has Acted Illegally

The president's threats might prevent future whistleblowers from coming forward to expose executive abuse.

Partisans of this president are looking for every way to undermine and smear the Ukraine whistleblower. They have accused the person of being a Democratic hack. They have questioned the whistleblower's motives and integrity. And they have speculated that he or she is part of a deep state conspiracy to take down President Donald Trump.

But Trump himself took the cake when he demanded to know the identity of the person while saying that whoever did so was "close to a spy."

"You know what we used to do in the old days when we were smart with spies and treason, right? We used to handle it a little differently than we do now," he said, hinting that the person deserved severe punishment—perhaps even execution.

But there is a vast difference between a domestic spy who sells out his country to another for personal gain and a whistleblower who tries to protect his country from corrupt officials abusing the powers granted to them.

If anything, Trump's actions are more in line with a spy's given that he is using his public office for private gain. As Frank Bowman, University of Missouri law professor and author of High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump, notes, in authoritarian states like Vladimir Putin's Russia, it may be seen as normal for a leader to use state power to ensure his continuation in office. In this country, a president's interest in getting re-elected is considered to be a private, rather than a public, interest. (Dislosure: Bowman is my tenant.)

That's why, argues The Volokh Conspiracy's Ilya Somin, to the extent that Trump threatened to withhold congressionally authorized aid to Ukraine until President Volodymyr Zelenskiy promised to dig up dirt on Trump's political opponent, he basically demanded an in-kind political contribution, a kind of private benefit that 18 USC Section 601 explicitly outlaws. Soliciting foreign contributions for a political campaign is not illegal, per se. But what is potentially criminal—along with being unconstitutional—is that Trump tried to use congressional aid as leverage to do so.

The whistleblower, by contrast, has scrupulously adhered to the law.

University of Texas' Stephen Vladeck points out that the amended 1978 Foreign Intelligence Surveillance Act (FISA) laid out the channels and procedures that whistleblowers must follow in order to expose wrongdoings by higher-ups in intelligence agencies—both to protect classified information and themselves from retaliation. This means that the whistleblowers dealing with sensitive intelligence cannot leak the information to the press or the public. Rather, they must share their concerns with the Office of the Inspector General (OIG) who, in turn, is required to transmit credible concerns to the director of national intelligence (DNI). The director then has seven days to transmit this information to congressional intelligence committees along with his (or her) own comments.

In this case, the whistleblower did exactly what he was supposed to do. Unlike Daniel Ellsberg of Pentagon Papers fame and Edward Snowden, the National Security Agency contractor who exposed government surveillance of ordinary Americans, both of whom illegally (and heroically for anti-war, anti-surveillance libertarians!) copied classified information and released it publicly, the whistleblower, in this case, did none of those things. He stayed within official channels.

But the folks whom he reported his concerns to didn't. Vladeck notes that for the first time in the 21-year history of the revised FISA statute, DNI Joseph Maguire did not forward the whistleblower's complaints to Congress. Why? Because the Department of Justice told him not to, even though the DOJ Office of the Inspector General, a quasi-independent watchdog, deemed it worthy of congressional scrutiny.

Yet the president has the temerity to accuse the whistleblower (and those around him) of being spies who have committed treason while advocating that we deal with them like we used to do in the "old days" when we were apparently smarter. These are the kinds of threats that, if not unambiguously rejected, could prevent future whistleblowers from coming forward to expose executive abuse. They are more worthy of banana republics led by authoritarian rulers who have contempt for any law that holds them accountable.

Trump has gotten himself into big trouble. And he will seemingly stop at nothing to get himself out of it—even if that means personal attacks, threats, and trashing of the institutions and norms painstakingly erected over the course of the last 250 years.