By Andrew McCarthy
Published November 19, 2019
Congressional Democrats are obstructing the impeachment inquiry.
You heard that right. It has become rote for House Intelligence Committee Chairman Rep. Adam Schiff, D-Calif., and his fellow Democrats to chide the Trump administration for blocking testimony from White House staffers and the president’s private lawyer, Rudy Giuliani. Yet, those witnesses actually have confidentiality privileges that are well settled in federal law, shielding communications between the chief executive and his top advisers, and between attorney and client, from disclosure.
When a person asserts a privilege recognized by law, we don’t call that obstruction. We call it the law in action.
By contrast, Schiff is playing a lawless game with the so-called whistleblower: predicating the impeachment inquiry on this intelligence official’s complaint while blocking Republicans from questioning the official and other policy officials with whom he dealt. The suppression of relevant information obstructs the congressional investigation.
I have argued from the outset that the “whistleblower” is not actually a whistleblower in the strict legal sense because the statute governing the protection of such sources is inapposite. (That is, the statute covers disclosures relating to activities of the intelligence services, not the president’s conduct of foreign relations.) For present purposes, though, let’s assume I am wrong and that the “whistleblower” is covered.
If this were a legal case, there is not a court in America that would keep the whistleblower’s identity and the details of his role in the origins of the Democrats’ Ukraine investigation under wraps.
Congressional Democrats are not merely withholding the identity of the whistleblower. They are denying committee Republicans the right to question other witnesses about relevant dealings with the whistleblower.
Contrary to what Democrats would have you believe, this is not an unusual situation. It comes up frequently in prosecutions. The principle is simple: There are many legal and policy limitations on the disclosure of information. If, however, the government decides to proceed with a prosecution that makes presumptively secret matters germane to the truth-seeking process, secrecy has to give way.
Classified information is a good example.
There are situations in which the Justice Department faces a harrowing dilemma. Let’s say the FBI has an informant who has infiltrated a terrorist organization; or perhaps the Bureau has managed to plant an eavesdropping device in a meeting place where terrorists plot attacks. Of course, the information the government is receiving, and the sources and methods of obtaining it, are highly classified because of the national security implications. But now, the Justice Department decides it would like to arrest and indict the terrorists based on this information.
Under our due process rules, there is no way to do that without revealing the sources. The government thus faces an excruciating choice: Do we prosecute the terrorists and expose sources that are providing us life-saving information? Or do we forego bringing terrorists to the justice for what may be the greater good of continuing to get the life-saving information and to preserve the safety of our informant?
In a real truth-seeking process, as opposed to a kangaroo court, this is the adult choice that has to be made. There is no clever way of avoiding it.
Yes, there are federal laws that protect the confidentiality of classified information. But those laws are a shield; the government may not use them as a sword. If there is a prosecution, the confidentiality has to give way. The government is not permitted to bring a prosecution but deny the accused the right to mount a defense by claiming that the law mandates secrecy. If the government wants to have the secrecy, it has to forego the prosecution. You can’t have it both ways.
And the whistleblower law explicitly recognizes this unavoidable fact.
Unlike classified information, the law does not even cloak whistleblowers in secrecy. It merely protects them from reprisals for revealing information that may be embarrassing or incriminating.
The only official that the statute directs to keep the whistleblower’s identity confidential is the inspector general of the intelligence community (ICIG), to whom a whistleblower makes his report. But even that direction is limited. The statute states that the ICIG may reveal a whistleblower’s identity in two situations. First, disclosure is permitted when “disclosure is unavoidable” if the matter is to be investigated properly. Second, consistent with what I’ve outlined above, the ICIG may disclose the identity to the Justice Department for purposes of its determination of whether a prosecution is appropriate.
The reason for these exceptions is obvious. If a whistleblower’s complaint is going to lead to a full-blown investigation or a prosecution, it is not possible to keep the whistleblower’s identity a secret. People who are subjected to an investigation or prosecution have a due process right to defend themselves.
In a normal investigation, if the government told a court that it wanted to proceed against a suspect but withhold information relevant to the prosecution, the judge would be outraged. The court would inform the government that if it wanted to prioritize secrecy, it would have to dismiss the case; but if it wanted to proceed with the case, it would have to disclose. To proceed with an accusation but suppress the information the accused needs for purposes of investigating and confronting the accusation is obstruction of the truth-seeking process.
That is precisely what congressional Democrats are doing. They are not merely withholding the identity of the whistleblower. They are denying committee Republicans the right to question other witnesses about relevant dealings with the whistleblower.
For example, Lt. Col. Alexander Vindman, who is scheduled to testify in a public hearing on Nov. 19, is believed to have consulted with the whistleblower. Those interactions bear on his knowledge and possible bias, which are highly relevant issues.
Yet, when the committee interviewed him behind closed doors, Schiff repeatedly cut off questioning that touched on the whistleblower – on the bogus rationale that permitting this entirely reasonable line of inquiry might compromise the whistleblower’s interest in confidentiality.
That is, the truth-seeking process was subverted to protect “rights” that the “whistleblower” does not actually have to both anonymity and insulation from examination.
That is absurd. The statute imposes no prohibition on Congress from revealing the whistleblower’s identity. And as we’ve seen, it does not even inhibit the ICIG from revealing the identity if doing so facilitates an investigation.
If Democrats insist, against law and logic, that the whistleblower must remain confidential, they can drop their inquiry against the president – just as the Justice Department must sometimes drop cases in order to preserve secrets that promote national security.
But if Democrats insist on proceeding with the impeachment inquiry, they cannot insist on secrecy. You cannot commence an adversarial proceeding and then deny the adversary the information needed to contest it.