Pres. Trump and others are trying to “out” the Ukraine whistle blower. If they do name the whistle blower, they will violate the Intelligence Community Whistleblower Protection Act. The ICWPA does not provide a private right of action. The only mechanism available to a whistle blower is to submit an internal complaint. The Ukraine whistleblower did just that. He submitted an internal complaint to the Intelligence Community Inspector General. The statute specifically provides that the IG cannot publicly name the whistle blower. See 50 U.S.C. Sec. 3033(g)(3)(A). The statute does not specifically state that someone else cannot name the whistle blower. Does that omission mean that someone else can publicly disclose the Ukraine whistle blower?

No, it does not. The President of the United States must enforce the ICWPA. The President is specifically charged with enforcing the ICWPA act and all intelligence laws. The act specifically states that a whistle blower will not suffer reprisal. Caselaw, the Department of Labor, and the Securities Exchange Commission have all found that disclosing the name of a whistleblower constitutes retaliation.  See National Law Review piece by Stephen M. Kohn of the National Whistleblower Center here. The National Whistleblower Center is a non-profit which supports whistle blowers. I have used them as a resource for years. See the NWC site here.

The ICWPA provides that “employees” in a position to take reprisal may not take reprisal against a whistleblower. See 50 U.S.C. Sec. 3033(g)(3)(B) (“no action constituting a reprisal, or threat of reprisal, for making such complaint or disclosing such information to the Inspector General may be taken by any employee in a position to take such actions”). Once a person makes a complaint to the IG, then Sec.    3033(g)(3)(B) kicks in.

It is ironic, but it is Pres. Trump’s statutory duty to protect the identity of the Ukraine whistleblower. And, that makes sense. It would be non-sensical if the IG was prohibited from breaching the confidentiality of a whistleblower, while management was not similarly constrained.