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Louis Jacobson
By Louis Jacobson November 11, 2019

Is outing the whistleblower only a crime if the inspector general does it?

Panelists of ABC’s "The View" recently grilled Donald Trump Jr. on the issue of revealing the identity of the anonymous whistleblower whose complaint sparked the impeachment inquiry of Trump’s father.

Before the interview, Trump had joined a growing chorus of White House supporters seeking to publicize the whistleblower’s name, tweeting out an article that alleged the possible identity of the whistleblower. The president himself has urged the media to report his name, as have a Trump ally, Sen. Rand Paul, R-Ky., and other Republicans on Capitol Hill. 

"The View" co-host Sunny Hostin, a former federal prosecutor who also serves as senior legal correspondent and analyst for ABC News, suggested that the younger Trump's tweet may have broken the law.

Here’s the exchange between Trump, his girlfriend Kimberly Guilfoyle, and Hostin:

Hostin: "Kimberly, you’re a lawyer… Did you advise your boyfriend that it is a federal crime to out a whistleblower?"

Trump Jr.: "It’s only a federal crime for the (inspector general) to do it. That’s in the statute."

Hostin: "That’s a lie. ... Under U.S. Code section 1505, it is a crime. … My law degree says it is."

Is Trump right that "it’s only a federal crime for the IG" to out a whistleblower?" He’s accurately described the most relevant law on this subject, but he’s glossed over a few other statutes that could come into play.

"There is no statute that contains a general prohibition on disclosing the name of a whistleblower except for the provision that says the IG and his staff can’t disclose it," said Robert Litt, an attorney who served as general counsel for the Office of the Director of National Intelligence during the Obama administration.

However, Litt added, "That’s not the end of the story. There are other statutes that, depending on the circumstances could apply."

The barrier to disclosure by the inspector general

Several independent legal experts agreed with Trump’s retort about the inspector general. As Trump noted in a followup tweet, it comes from U.S. Code Section  3033, which specifically bars the inspector general from releasing a name, but is silent on others who would do so.

"There is no overarching protection for the identity of the whistleblower under federal law," Dan Meyer, a former executive director of an intelligence community whistleblower program, told NPR. "Congress has never provided that protection."

Another part of Section 3033 does provide broader protection for workplace "reprisal." But by addressing "disclosure" and "reprisal" separately, the law suggests that disclosure by itself doesn’t amount to reprisal — and that disclosure alone doesn’t qualify for the stronger protections granted against "reprisal."

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Protections for covert operatives, obstruction of justice, witness retaliation

Other provisions of federal law could possibly cover the whistleblower scenario, but we can’t say they’d be relevant without knowing more than we do now.

A 1982 amendment to the National Security Act of 1947 makes it a crime to intentionally disclose "any information identifying" a covert intelligence agent.

This provision would be irrelevant if the whistleblower is not a covert agent. Reports based on anonymous sources have said the whistleblower is a CIA officer who had been detailed to the White House.

Meanwhile, there’s another argument: that revealing the whistleblower’s name is tantamount to obstructing justice — in this case, the work of Congress in carrying out impeachment.

This is what Hostin was getting at when she referred to Section 1505, which makes it a crime if someone "corruptly, or by threats or force … influences, obstructs, or impedes … the due and proper administration of the law."

This passage specifically mentions a congressional proceeding, legal experts pointed out, which would seem to cover the example of the impeachment inquiry. 

There’s a related statute on witness retaliation that may be relevant as well. Section 1513 makes it a crime to retaliate against someone "for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense."

Some attorneys argue that the scenario involving the whistleblower would qualify under one or both of these provisions. 

Section 1513 was cited by a lawyer for the whistleblower in a cease-and-desist letter sent to the White House, an ABC spokeswoman noted. And on Nov. 9, House Intelligence Committee Chairman Adam Schiff released a statement that cited "the president’s effort to threaten, intimidate, and retaliate against the whistleblower."

Sections 1505 and 1513 "would make it criminal to harm the whistleblower in his or her ‘employment’ or ‘livelihood,’" said Stephen M. Kohn, a founding partner of Kohn, Kohn & Colapinto LLP, a law firm specializing in whistleblower representation. "This covers any person — federal employee or not. Because an intelligence community employee needs to maintain a level of confidentiality to perform his or her job, including overseas assignments, I believe that ‘outing’ this person would constitute a serious criminal offense."

There’s another potential negative consequence for the person outing a whistleblower short of criminal liability: They could leave themselves open to lawsuits for damages.

This is not an idle concern, given that the whistleblower has received death threats and is under security measures, the whistleblower’s co-counsel, Andrew Bakaj, told USA Today.

Our ruling

Trump said, "It’s only a federal crime for the" inspector general to out a whistleblower.

He has zeroed in on the clearest legal barrier to outing a whistleblower (at least one who isn’t a covert operative). However, it would be possible to argue in court that outing a whistleblower also qualifies as obstruction of justice or witness retaliation, which — if a judge agrees — would be another scenario in which this results in a federal crime.

The statement is accurate but needs additional information, so we rate it Mostly True.

Our Sources

Mediaite, "Sunny Hostin to Kim Guilfoyle: Did You Inform Don Jr. It’s a ‘Federal Crime’ to Unmask Whistleblower?" Nov 7th, 2019

Donald Trump Jr., tweet, Nov. 6, 2019

Donald Trump Jr., tweet, Nov. 7, 2019

U.S. Code Section  3033

U.S. Code Section 1505

U.S. Code Section 1513

Intelligence Authorization Act for Fiscal Year 2014

1982 amendment to the National Security Act of 1947

Letter from Compass Rose Legal Group to White House Counsel, Nov. 7, 2019

NPR, "Can Trump Legally Out The Whistleblower? Experts Say It Would Not Violate Any Laws," Nov. 6, 2019

USA Today, "Trump's allies want to ID the whistleblower, who may learn the price of speaking out," Nov. 6, 2019

Mother Jones, "Outing the Whistleblower Could Be Illegal. Expect Them to Get Away With It," Nov. 7, 2019

Washington Post Fact Checker, "Rand Paul’s claim that Trump has a constitutional right to confront whistleblowers," Nov. 8, 2019

The Hill, "Trump urges media to report whistleblower's name," Nov. 3, 2019

The Hill, "Schiff warns GOP: Impeachment probe won't undertake 'sham' investigations into Bidens," Nov. 9, 2019

Washington Post, "‘Do your job and print his name’: Rand Paul demands media identify the whistleblower," Nov. 5, 2019

Wall Street Journal, "Trump Allies Ramp Up Efforts to Unmask Whistleblower," Nov. 3, 2019

Harry Litman, "Yes, outing the whistleblower is against the law — but the law is toothless," Nov. 6, 2019

Email interview with Stephen M. Kohn, founding partner of Kohn, Kohn & Colapinto LLP, a law firm specializing in whistleblower representation, Nov. 7, 2019

Interview with Robert Litt, attorney who served as general counsel for the Office of the Director of National Intelligence during the Obama administration, Nov. 8, 2019

Email interview with Heidi Kitrosser, University of Minnesota law professor, Nov. 10, 2019

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