Andrew McCarthy: The ‘whistleblower’ isn’t really a whistleblower under the relevant law

Speaking as a constitutional lawyer, I believe Sen. Rand Paul, R-Ky., makes a good medical doctor.

I used to have occasion to say that in the Patriot Act debates, when the senator was wowing us with his Fourth Amendment theories. With impeachment upon us, he’s now onto the Sixth Amendment — specifically, the confrontation clause.

The Sixth Amendment guarantees the right of cross-examination: In all criminal trials, the accused must be given the right to confront the accusers. Paul has deduced that this must mean that the identity of the so-called whistleblower has to be revealed, lest President Trump be denied his constitutional rights.

Sigh.

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Impeachment is neither a criminal trial nor a legal process, so the president does not have the constitutional right to confront his accuser.

Mind you, Paul has been making this argument while he himself shrinks from outing the man at issue — whom we are reliably told is a 33-year-old CIA official, formerly tasked to the White House National Security Council as a Ukraine expert. There is but a small circle of people who fit that description, so Paul, like many in Washington, has known the name, to near certainty, for some time.

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The senator makes the fair point that there is no legal barrier to the media’s naming the man. We can be confident that if a Democratic president had been accused of impeachable offenses, that would already have happened weeks ago (and, indeed, some right-leaning media sites have published the name).

… As I’ve previously explained, the man in question may be a “whistleblower” in some common-usage sense of the word. Yet, he is not a whistleblower in the statutory sense. That’s the only sense that matters because the relevant statute is what triggers whistleblower protections. Under that statute, protected status is given to an official who reports on intelligence activities within the jurisdiction of the director of national intelligence. The statute does not apply to the president’s conducting of foreign policy, including his communications with foreign heads of state.

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