The Intelligence Community Whistleblower Protection Act of 1998 was passed to cover persons in the intelligence community, as the name suggests. It applies to the 17 various federal intelligence agencies. It defines an “urgent” concern as one that represents a “serious or flagrant problem, abuse, violation of law or executive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information. It does not apply to differenses of opnion about policy matters. See Congressional Research Service information paper here. The Act is codified in three statutes: 5 U.S.C. App. §8H, which applies to Inspector Generals (IGs) for Intelligence Community elements generally; 50 U.S.C. §3517 which applies to the CIA IG; and 50 U.S.C. §3033 which is specific to the Intelligence Community IG.
The Ukraine whistleblower submitted a complaint which the IG found to be urgent and credible. Certainly, the President’s actions in attempting to trade a personal favor for military aid violates various national security laws and regulations. As a mid-level employee, if he were a mid-level manager, he would lose his security clearance for that violation.
The Act also applies to acts of reprisal or threats of reprisal. The Act specifically provides that the Inspector General of the Intelligence Community may not disclose the identity of a whistleblower without that person’s consent. 50 U.S.C. Sec. 3033(g)(3)(A). This is a protection unique among the various federal whistleblower statutes.
The President attacks the report as based on second-hand information. That is not accurate. The report is based on first-hand and second-hand information. Even so, no whistleblower statute, and there are some 20 different federal whistleblower statutes, requires first-hand information. As Sen. Chuck Grassley said, if a whistleblower complaint is based on second-hand information, then more leg work is required and the whistleblower needs to be sure of his/her information. But, there is no specific statutory requirement that a whistleblower complaint be based on first-hand information.
Pres. Trump has again insisted he should know the identity of the Ukraine whistleblower. He says he wants to talk to him and ask questions. See The Hill report. The President says the whistleblower is a “fraud” who was given false information by others. Certainly, these remarks constitute evidence of an intention to take reprisal against the whistleblower. This is the reaction of most employers to a whistleblower report. Aren’t all employers of a whistleblower convinced their actions were nice and warm, as the President claims? I have yet to meet a whistleblower who did not endure vicious blowback for even questioning his/her employer’s actions.
We can, it seems, count on the President to reflect our worse natures……..