Reason Roundup

If He Thinks It's Such a Good Idea, Why Won't Rand Paul Name the Whistleblower Himself?

Plus: Jeff Sessions and Michael Bloomberg won't go quietly, Facebook's forbidden emojis, a win for raw milk sellers, and more...

|


dpaphotosthree277291 | Johannes Schmitt-Tegge/dpa/picture-alliance/Newscom
(Johannes Schmitt-Tegge/dpa/picture-alliance/Newscom)

Not illegal to out "whistleblower." Sen. Rand Paul (R–Ky.) has been calling on his colleagues to put a public spotlight on the man who introduced the world to the Trump-Ukraine scandal and shaming the press for not printing the suspected whistleblower's name. This has earned Paul accolades from the MAGA crowd but has elicited mixed feelings, at best, from libertarians, who argue that doing so could have a chilling effect on future reporting of possible corruption.

Paul has defended himself by arguing that there's nothing illegal about outing the government employee who first raised concerns about President Donald Trump's July call with the Ukrainian president.

"The whistleblower statute protects the accuser from being fired but says nothing about skeptics revealing his name," said Paul in an emailed statement Wednesday. "There is absolutely no statute that prevents anyone, other than the inspector general[,] from releasing the accuser's name."

That's true, as Andrew C. McCarthy points out at National Review:

The law imposes this highly qualified confidentiality requirement only on the [inspector general of the intelligence community]. It does not bind other government officials, much less members of Congress, the media, and the public. The point of the law is to shield whistleblowers from reprisals (being fired, demoted, denied promotion, transferred to Anchorage, etc.), not from public identification.

What's more, the figure in this case may not fall under the statutory definition of a whistleblower, in which case he isn't owed any special legal protections at all.

"Under that statute, protected status is given to an official who reports on intelligence activities within the jurisdiction of the director of national intelligence," writes McCarthy. "The statute does not apply to the president's conducting of foreign policy, including his communications with foreign heads of state."

And yet… The question of whether people can legally name the whistleblower is separate from whether they should.

Paul could legally name the person right now. What's stopping him? ("Naturally, he wants someone else to take the heat while he carps from the well-appointed cheap seats," McCarthy suggests.)

It's also distinct from the question of Trump having a right to "confront his accuser." This supposed right has been at the core of Trump and his people's complaints about the current impeachment goings-on in the House of Representatives. It's also a complete mangling of constitutional law and blatant attempt to confuse the issue.

So, one more time for those with their MAGA hats on a little too tight: Yes, the Sixth Amendment provides certain confrontation and access rights to defendants in criminal trials. But Trump is not a defendant at a criminal trial, and have the impeachment proceedings have not yet reached any phase anywhere analogous to a criminal trial. Which means Trump has no constitutional right or reasonable expectation to publicly face his "accuser" right now.

It may be "reasonable to expect that Trump should be allowed to face the whistleblower if his impeachment proceeds to the Senate and the whistleblower's testimony is used as evidence," as Reason's Scott Shackford suggested yesterday. And "if the whistleblower won't come forward, Paul can use that as justification for declining to remove Trump from office."

But "the way Paul is talking about revealing the whistleblower now—during the investigation itself—is akin to the police revealing the names of witnesses to a suspect long before that suspect has been charged with any crime," Shackford continued. If Paul's efforts occurred "in an actual criminal investigation rather than an impeachment investigation, would look a lot like witness intimidation."

Earlier this week, Paul proposed legislation that would expand current whistleblower protections to government contractors. That's good. But Paul's bill also says this:

Congress reaffirms that, in the case of criminal prosecutions and impeachments arising from the disclosures of whistleblowers, the accused has the right to confront his or her accuser in such proceedings and that right is not superseded by the whistleblower protections.

Let's not confuse a lack of special treatment for Trump with the denial of a defendant's due process rights.

ELECTION 2020 

Nobody:

 

Absolutely nobody:

 

Michael Bloomberg and Jeff Sessions: We're baaaaaaaaaaaaack!

Sessions announced yesterday that he'll be running for his old Senate seat; Bloomberg is reportedly joining the sprawling Democratic presidential field.

FREE MINDS

Emoji obscenity and our scary internet future. "For many adult industry entertainers, artists, and activists, losing access to [large social media venues] has become increasingly common," writes Siouxsie Q at Rolling Stone. Attempts to appease government regulators mean ever-increasing rules around what can be said. From Q:

Now, Facebook has gone so far as to explicitly outline its supremely staunch position on the use of "suggestive emojis" to solicit sexual communication—which means the days of using cartoon eggplants and peaches in your thirst trap mirror selfies are most likely numbered. Instagram representative Stephanie Otway clarified in an email that the company is taking action only on emojis "used alongside an implicit or indirect ask for nude imagery, sex or sexual partners, or sex chat conversations."

Taken alone, things like this may not seem like such a big deal. But Q points out that "sex workers have lost the lions share of their advertising and screening options in the past year." Simply "remaining visible has been a challenge due to a massive chilling of online speech related to all forms of sex, sexuality, and sexual health, along with a culture of community policing, that has resulted in bodies and stories that are already at the margins being further excluded, harassed, and silenced."

For more on emoji crackdowns and social-media "community standards," see this piece from XBiz's Gustavo Turner.

FREE MARKETS

Court strikes down Kansas ban on raw milk advertising off the farm. The victory means raw milk peddlers in the state can start advertising anywhere others are allowed, rather than be confined to marketing their milk only on their own property.

Coraleen Bunner—a plaintiff in the lawsuit, along with her husband—said in a press release that it will "be nice to have the freedom to talk about what we do. We throw out excess milk on a regular basis because we can't talk about it."

With help from the Kansas Justice Institute (KJI), the Bunners challenged the state's rule regarding raw milk ads, arguing that it violated their constitutional right to free speech. "The government's speech-ban was offensive," KJI Litigation Director Samuel MacRoberts said in a statement. "This quick and decisive victory is a win for the speech rights of all Kansans. The Bunners have the absolute right to advertise raw milk."

The Kansas attorney general has agreed not to challenge the state court ruling declaring the raw milk advertising ban unconstitutional.

FOLLOWUPS

Kentucky Gov. Matt Bevin is still refusing to concede the race to Democrat Andy Beshear, who outpolled Bevin by just a few thousand votes (out of 1.4 million). So what's next? "The state's Constitution and laws provide for several measures to decide a close or disputed election, and experts say that in the end, the voters may not have the final say," explains The New York Times.

The FDA disagrees with Kellyanne Conway. The president's advisor said the U.S. Food and Drug Administration does not have jurisdiction over vape shops and e-liquids. The agency disagrees. Jacob Sullum explains here.

QUICK HITS

  • President Donald Trump "was never completely hinged," a former White House official told The Atlantic's Peter Nicholas. "The trip from where he was to unhinged, as he is now—that was not a long trip."
  • Homeland Security expects to have obtained biometric data—i.e., face, fingerprint, and iris scans—on a minimum 259 million people by 2022, according to new agency figures. "That's about 40 million more than the agency's 2017 projections," notes Quartz.
  • The Project on Government Oversight is suing for the release of records related to Immigration and Customs Enforcement data collection, facial recognition programs, and other surveillance.
  • The Institute for Justice is petitioning the U.S. Supreme Court "to resolve whether the Constitution allows private developers to grant themselves the right to use eminent domain to seize someone else's private property for their own gain." The petition, filed yesterday, is here.
  • "If the Mexican government made it so a civilian could own a firearm, I truly believe all this stuff would calm down a lot quicker than anyone would realize," said Kenneth Miller Jr., a resident of the Mormon community in Mexico where nine women and children were just killed.
  • On The View, Whoopi Goldberg pushed back against Sen. Kamala Harris' proposal to extend the school day until 6 p.m. "I think keeping a kid in school until 6:00 is like institutionalizing them, because…a lot of these buildings do not have gymnasiums. A lot of these buildings do not have a place to have after-school programs," Goldberg said.
  • Juul continues to cave to panic.
  • Are we witnessing the death of rude media?
  • "All Marines now have the right to bear umbrellas, for the first time in their more than 200-year history," reports CNN. Apparently, only female Marines were allowed to use umbrellas up until now.
  • Virginia Circuit Judge Stephen Mahan sentenced an 18-year-old woman to 10 days in jail because he didn't like the way she closed a courtroom door.
  • The Equal Rights Amendment is back.
  • Against European Union–style "hate speech" laws.
  • News you can use:

  • Yikes:

Elizabeth Nolan Brown is a senior editor at Reason.