October 1, 2019
With the news that a White House Ukraine whistleblower is willing to speak to Congress, it appears inevitable that his or her identity will become public. Some have argued that the whistleblower should publicly make the case against the president.
We and our partners are former government prosecutors who now represent whistleblowers alleging fraud against the government. Together, we have represented scores of whistleblowers raising allegations of impropriety under federal and state law. When necessary, we take these cases to trial.
That experience has taught us that while the whistleblower’s identity may eventually become public, voluntarily disclosing it, or worse, expecting the whistleblower to “prove” these allegations, would be a strategic error.
Our clients speak out against employers, friends and colleagues to report violations of the law. Every whistleblower has his or her own reasons, and the decision to come forward invariably requires great courage. They are heroes — whether or not they carry baggage.
Whistleblowers are often viewed or portrayed as troublemakers or sticklers about minor rules. They often do not report fraud until after their termination, raising accusations of revenge. Many of the whistleblower laws we utilize provide substantial awards to a whistleblower. These rewards can run into hundreds of millions of dollars. Defendants invariably claim that whistleblowers are motivated by greed.
Having litigated these cases through trial, we can assure you that defendants want nothing more than to divert the inquiry from an examination of their crimes to the whistleblower’s motives. If that strategy sounds familiar to you, it should.
It has been President Donald Trump’s go-to tactic whenever he is confronted with accusations of wrongdoing: the Steele dossier was “phony and corrupt”; former FBI James Comey was crooked; former top FBI official Andrew McCabe was a “major sleazebag”; special counsel Robert Mueller was conflicted; and so on. The president has already begun: He claims that the White House whistleblower’s a “partisan person,” even while claiming he doesn’t know the identity.
But the issue in whistleblower cases is the veracity of the allegations, not the whistleblower’s motivation. For this reason, most effective whistleblower laws require that allegations remain secret anonymous. Government prosecutors investigate those allegations and determine whether sufficient evidence exists to mount a prosecution.
The best whistleblower prosecutions rely on evidence uncovered by the government while investigating the whistleblower’s allegations. And the best trial presentations lay out the inculpatory tale of the crime, not the story of the whistleblower and his or her motivations. Indeed, often, the government doesn’t even mention the whistleblower at trial, if it has corroborated the original allegations.
Defendants invariably want to put the whistleblower on trial. But the law, as regularly applied in federal court, is that the whistleblower and his or her motives are irrelevant.
Congressional leaders would do well to follow this example. They cannot allow the inquiry to devolve from whether President Trump betrayed the oath of office into whether this whistleblower’s motives are pure. This is a great danger, not only because such an inquiry could divert focus from the serious questions of impeachable conduct, to the often more entertaining details about the whistleblower’s relationship to the president. A greater danger is that a skillful defense attorney can turn an inquiry into impeachable conduct into a referendum on whether the president or the whistleblower appears more odious.
The law attempts to avoid these dangers by removing focus from the whistleblower altogether. The allegations are either true or not. Ultimately, if the President withheld funds for corrupt purposes or asked a foreign power to fabricate dirt on a political opponent, then who cares why the whistleblower came forward? This is not a she said, he said matter and must not become one. The president either violated his oath of office or he didn’t, and no amount of whistleblower “baggage” exonerates impeachable conduct.
The White House whistleblower has done his or her job by following the laws. Congress now must investigate the allegations and protect the whistleblower, both for his or her sake and for the sake of the truth and the national interest.
David Lieberman and Suzanne Durrell published a version of this essay in the USA Today Forum on September 26, 2019.