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Opinion >  Syndicated columns

Andrew P. Bakaj and Mark S. Zaid: Whistleblower’s identity is no longer relevant

By Andrew P. Bakaj and Mark S. Zaid Special to the Washington Post

Our client’s whistleblower complaint about President Donald Trump’s efforts to solicit interference from Ukraine in the 2020 U.S. election was publicly released a month ago, and since then, speculation about the whistleblower’s identity has only increased.

As each allegation in the complaint is substantiated by new witnesses, the president and his supporters remain fanatically devoted to bringing our client into the spotlight. But the reality is that the identity of the whistleblower is irrelevant.

In August, our client lawfully filed a detailed complaint that prompted the intelligence community inspector general to conduct a preliminary investigation. That inquiry, which involved multiple witnesses – all of whom are also lawfully protected as whistleblowers – led to a finding that the complaint was both “urgent” and “credible” and was legally required to be transmitted to Congress.

Over the past month, we have all learned more facts – from the White House’s summarized transcript of the July call with Ukraine’s president, from text messages provided to the House of Representatives by the former U.S. special representative for Ukraine, and from congressional testimony by people intimately involved with the circumstances about which the whistleblower first raised concern. Much of what has been disclosed since the release of our client’s complaint exceeds the whistleblower’s knowledge of what transpired at the time the complaint was submitted. Because our client has no additional information about the president’s call, there is no justification for exposing their identity and all the risks that would follow.

However, even as the emerging facts have substantiated our client’s complaint, the president continues to repeatedly ask, “Where’s the whistleblower?” (He did this as recently as Thursday night.) He has even described our client as a “so-called whistleblower” and suggested that the whistleblower is passing on information from Rep. Adam Schiff, D-Calif., the chairman of the House Intelligence Committee. Perhaps most concerning is that the president has equated whistleblowers with “spies,” even stating: “You know what we used to do in the old days when we were smart? Right? The spies and treason, we used to handle it a little differently than we do now.” In the “old days,” spies were executed. It is clear to all what the president was suggesting.

Now Republican leaders in Congress are also focusing their attention on attacking the messenger and demanding public testimony from the whistleblower. This is nothing more than a diversionary tactic. For the record, we have notified both the House and Senate intelligence committees in a bipartisan manner that the whistleblower is willing to respond to any questions in writing and under oath.

It is outrageous for the president to claim that our client engaged in treason. Nor did our client spy on the president. The whistleblower was the sole drafter of the complaint and followed the letter of the law. As a federal official, our client swore an oath to uphold the Constitution and therefore had a duty to report these serious allegations of government misconduct. Acting director of national intelligence Joseph Maguire – himself an appointee of the president – stated in his public testimony Sept. 26 that our client “acted in good faith” and did “everything by the book.” We agree entirely.

We have each handled politically charged, precedent-setting whistleblower cases in the recent past. When Mark Zaid represented the CIA whistleblowers at the heart of the Republican-led Benghazi investigation, that matter was also political and hyperpartisan in nature. But in that case, no one threatened – let alone attempted – to expose those whistleblowers as a form of retribution. The focus was getting to the truth of what happened, as difficult as that truth may have been for some to accept. Andrew Bakaj crafted the legal and investigative framework protecting intelligence community whistleblowers, and himself reluctantly became a CIA whistleblower. We intimately understand the professional risk of having identities exposed, and the need to protect the individual whistleblower and the process as a whole.

The reckless attacks on our client are particularly disturbing because they undermine an already frail system meant to protect honorable whistleblowers who lawfully disclose a reasonable belief that there has been a violation of law, rule or regulation, or an abuse of authority. Exposing the identity of the whistleblower and attacking our client would do nothing to undercut the validity of the complaint’s allegations. What it would do, however, is put that individual – and the individual’s family – at risk of harm. Perhaps more important, it would deter future whistleblowers from coming forward in subsequent administrations, Democratic or Republican. If the lawful whistleblower system fails, that would encourage other individuals to illegally leak classified information to journalists to hide their identities and guard themselves from political attacks.

Members of Congress, in particular – even those who might oppose impeachment – have a responsibility to the American public to address the substantive facts instead of engaging in a spiteful campaign to expose the identity of someone who used a lawful process put in place by Congress itself to enable oversight of the executive branch.

Andrew P. Bakaj and Mark S. Zaid are lawyers who specialize in national security. They represent the whistleblower in the Ukraine matter.

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