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senate Bill S. 2798

Should Gov’t Whistleblowers be Protected From Retaliation & Have Their Identities Revealed to the Accused?

Argument in favor

When a whistleblower’s accusations lead to formal proceedings, such as an impeachment, the accused have a right to confront their accusers in person. As long as the Constitution is the law of the land, the Sixth Amendment supersedes statues affording anonymity to whistleblowers.

Matthew's Opinion
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11/26/2019
Whistleblowers should be protected as they are hopefully operating under the assumption for the good of the public welfare, whether in government or the private sector. If the whistleblower releases information that leads to a criminal trial, then the accused should have the right to defend themselves and confront the accuser. If the whistleblower is in the right, this should not be a problem.
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JTJ's Opinion
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11/26/2019
The whistleblower protection act does not protect a person’s identity, read it for yourself. How can a duly elected president be removed from office on the accusations of a fictional character? The people have a right to know who is trying to nullify their vote.
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Just.Dave's Opinion
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11/26/2019
Yes, exactly as the question is stated: protect them from retaliation and reveal their identity. You should be able to face your accuser just as it works for civilians, and then protect the whistleblower from retaliation.
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Argument opposed

Revealing the identity of a whistleblower to the person they’re accusing of wrongdoing increases the likelihood that the whistleblower will face retaliation because of their disclosure. That will have a chilling effect on the willingness of whistleblowers to come forward and report misconduct.

Aaron's Opinion
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11/26/2019
No. Whistleblowers identities need not be revealed. The accused should have to answer to the merits of the claim.
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Yvonne's Opinion
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11/26/2019
We need to protect all whistleblowers but if we disclose their identity, then we put their lives and families lives in danger. Now more than ever this is true. The rhetoric coming from this occupant of the white house and his cult has cause and increase in violence in this country. We absolutely need to remove this hateful criminal and criminal regime.
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jimK's Opinion
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11/26/2019
Updated: I had to rewrite aspects if this several times as I became more and more enraged by Paul’s asinine legislation. Apologies to those who read earlier responses, … … … First, if Rand Paul actually cared at all about justice, he would be leading the charge to stop the illegal suppression of witnesses and testimony subpoenaed by the House for their investigations. In this particular case the whistleblower only reported that there were legitimate concerns expressed by others regarding what they heard and observed; and DID NOT IN ANY WAY ALLEGE THAT CRIMES WERE COMMITTED, NOR PROVIDE ANY FACTS TO SUPPORT THAT CRIMES WERE COMMITTED- only the concerns of others. The fact that Republicans want this person to testify is astonishing since they have stated that only first hand testimony is relevant. The selective questionable application of legal principles to support party goals in one instance and then to argue that opposite, contradictory legal principles must apply to another aspect in order support their party’s attempt to indemnify their prior actions demonstrates the highly corrupting influence of the regimented party-before-country, party-before-principles dominance of the Republican Party; and if there enough thinking people left in the electorate, will accelerate the demise of the current Republican Party. .… … … Otherwise; Absolutely NO to Paul’s asinine proposal. If a bystander witnesses a cartel massacre, anonymously tells police that they witnessed it, provide details of the car that was used, the weapons employed, people they saw, how they conducted the massacre, the time it happened, which way the car went afterwards and so forth - and all of these details are verified by independent investigations and asserted to by credible witnesses; Why should this whistleblower be subjected the very real threats to their lives and livelihoods by being compelled to publicly testify? Fact are facts irregardless of whoever first pointed out concerns that facts may exist. If facts are corroborated by many witnesses there is absolutely no need to identify the person who properly alerted officials. This bill makes no sense at all and would certainly prevent bystanders from ever reporting crimes. In addressing the Randy reason for proposing this, trump’s own hateful rhetoric inferring that this whistleblower is treasonous and should be subject to capital punishment is reason enough to protect their identity. The innocents slaughtered in San Antonio which was inspired by trump’s race-based hateful rhetoric highlights the danger to our patriotic whistleblower and the incredibly stupid claim that they could ever be protected from any retaliation. Particularly in the case; the whistleblower never alleged any crimes, only the concerns of others and the irregular actions that occurred that legitimately led to concerns that something inappropriate was done. Credible witnesses, who put themselves and their careers at risk validated those concerns and more. So, who exactly is the ‘accuser’ that the alleged criminal has any right to confront? The whistleblower reported concerns through legal channels and the testimony of credible witnesses validated those concerns which led directly to factually based indictable charges of wrong doing. There is absolutely no reason at all to compel him or her to testify. I suggest Rand Paul sponsor legislation to mandate imprisonment of a minimum of 5 years for any person inside or outside the government who out’s a whistleblower identity as well as an immediate removal from office of any elected official or political appointee that either out’s a whistleblower or is complicit in doing so. Then, and only then, would I even ever want to consider this ludicrous proposal. I suggest that the RNC and Republican Party start acting like officers of the court and seek truth and not to engage in distracting side-shows. If they continue to collectively cover their butts from their own complicity in not reigning in their Frankenstein president from trampling our Constitutional and legislated laws; if they continue to abuse their role in honoring their duty to perform adequate checks of the balance of powers, a much more informed and less easily misled electorate will hold them to account. A Senate trial will be as much about the perceived corrupting of the Republican Party as it is about trump’s abuses. Even if trump ‘wins’, the Republican Party may ‘lose’ big if they continue to engage in simply covering their tracks by willful tactics designed to thwart the pursuit of justice. It’s a big gamble to take. You all feeling lucky, punks!
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bill Progress


  • Not enacted
    The President has not signed this bill
  • The house has not voted
  • The senate has not voted
      senate Committees
      Committee on Homeland Security and Governmental Affairs
    IntroducedNovember 6th, 2019

What is Senate Bill S. 2798?

This bill — the Whistleblower Protect Act of 2019 — would ensure that whistleblowers who are government employees or contractors receive adequate protection. It would reaffirm that such individuals couldn’t be terminated or prosecuted for making protected disclosures or any other disclosures as a whistleblower. It would also reaffirm that the Sixth Amendment guarantees that, in the case of criminal prosecutions and impeachments arising from whistleblowers’ disclosures, the accused has the right to confront their accuser, and that that right isn’t superseded by whistleblower protections.

Impact

Government whistleblowers; those accused by government whistleblowers; investigations prompted by government whistleblowers; and protections for government whistleblowers.

Cost of Senate Bill S. 2798

A CBO cost estimate is unavailable.

More Information

In-DepthSponsoring Sen. Rand Paul (R-KY) introduced this bill to both protect federal whistleblowers and ensure that those accused by whistleblowers have the opportunity to confront their accusers. In a November 5, 2019 Fox Business Network interview, he expounded on the need to ensure that the accused can face their accusers, as provided for by the Sixth Amendment: 

“The Sixth Amendment is pretty clear. It’s part of the Constitution, part of the Bill of Rights, and it says that you get to confront your accusers. And so, I think it’s very clear that the only constitutional mandate here is, is that if someone’s going to accuse you of something that might remove the president from office, for goodness’ sake, shouldn’t they come forward and present their accusations in person?”

In a November 6, 2019, Senate floor speech when he blocked Democratic efforts to bring up a resolution restating Senate support for federal whistleblower protections before introducing this bill, Sen. Paul further expounded on the need to make sure Sixth Amendment protections for the accused are protected:

“The Sixth Amendment guarantees an individual the right to face their accuser. Yet the House of Representatives has been conducting a secret impeachment inquiry based on secret claims made by a secret whistleblower. My bill would make clear that the Sixth Amendment is not superseded by statutes and that the president should be afforded the same rights that we all should: to understand the nature of the allegations brought against them and to face their accuser. This is in the Sixth Amendment. So for all the caterwauling about whistleblower statutes, there is a high law of the land. It is the Constitution, it is the Bill of Rights, and the Sixth Amendment says if you’re accused of a crime, you get to face your accuser.”

Finally, in a November 6, 2019 op-ed in The Hill, Sen. Paul criticized Democrats for apparent hypocrisy on the issue of whistleblowers’ anonymity: 

“With regard to whistleblower statutes, not only do I support them, but I have advocated that they be expanded to cover government contractors such as Edward Snowden. Edward Snowden, as will be recalled, proudly attached his name when he released proof that James Clapper had lied about warrantless mass surveillance of Americans. These statutes are intended to prevent someone from being fired or prosecuted. The statute dictates that the inspector general not release the name but is silent as to anyone else revealing the name. It’s funny that before THIS whistleblower, many who are now criticizing my stance chose not to defend perhaps the greatest whistleblower of all time –Snowden. Minority Leader Chuck Schumer (D-N.Y.) said of Snowden, ‘If Mr. Snowden had the courage of his convictions, he would come back to the country, stand trial, and tell the American people and a jury why he thought what he did was justified.’ It seems Schumer’s defense of whistleblowers depends upon the subject whistled. I believe it is very simple: the Sixth Amendment guarantee of confronting your accuser supersedes all statutes. Any whistleblower who alleges a crime ultimately will have to face their accused in court.” 

House Speaker Nancy Pelosi (D-CA) has pushed back on suggestions that the identify of the whistleblower who reported President Donald Trump for pressuring Ukraine to investigate the Bidens should be made public. She says, “Nobody should have the right to endanger whistleblowers. And that is the system that I will defend. And the American people understand that."

Similarly, Senate Minority Leader Chuck Schumer (D-NY) says Republican calls to name the whistleblower are “wrong” and “dangerous,” and that outing the whistleblower or setting a precedent that whistleblowers’ identities should be made public would send a “chilling message to future patriots.”

Sen. Mitt Romney (R-UT) has also expressed support for preserving whistleblower anonymity. On November 5, 2019, he said, “[W]histleblowers should be entitled to confidentiality and privacy, because they play a vital function in our democracy.”

Stephen I. Vladeck, a professor at the University of Texas School of Law and an expert on national security law, notes that the Sixth Amendment only applies to criminal prosecutions: 

“The text of the Sixth Amendment expressly limits it to ‘criminal prosecutions,’ and even there, the confrontation right applies only to those witnesses whose evidence is used against the defendant at trial. There’s no right even in a criminal case to confront every single person who played any role in the investigation leading to the charges (like anonymous tipsters).”

However, Vladeck also notes that the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA) and related statutes don’t guarantee anonymity for whistleblowers. These laws only guarantee that whistleblowers following the law in reporting concerns can’t be demoted, fired, reassigned, docked pay, sent in for psychiatric exams, or denied security clearance in retaliation: 

“Nothing in the ICWPA expressly protects the anonymity of a complainant, or provides sanctions for someone who discloses it. I think the harder question is whether disclosing a whistleblower’s identity could run afoul of other statutes, such as the federal criminal laws barring efforts to intimidate witnesses.”

Conservative writer and former U.S. Attorney Andrew McCarthy concurs with Vladeck: 

“The confrontation clause protects only the accused at a criminal trial. The point is that before one’s liberty is taken away, one must have the opportunity to question one’s accusers. Impeachment, however, is not even a legal proceeding, much less a criminal trial. It is a political proceeding. No one’s liberty is at stake; it is strictly about whether an official should be stripped of political authority — in the president’s case, of the executive power… Finally, even when the Sixth Amendment does apply (at a criminal trial), the confrontation it guarantees is the ability to cross-examine the witnesses the prosecution calls to establish its case. It does not extend to other people (e.g., tipsters, others who’ve provided hearsay information to investigators). It is very common in the investigative stage for police to receive damning information about a suspect from second- and third-hand sources. That information is investigated, which is how the police and prosecutors locate the first-hand witnesses who are called at the eventual trial. There is no right to confront witnesses the prosecutor does not call, even if they have provided accusatory information… The Sixth Amendment has nothing to do with impeachment, and it does not advance a claim that [a] ‘whistleblower’ should be outed and questioned.”

House Oversight Committee Democrats believe that efforts to expose whistleblowers’ identity may run afoul of both the law and the Code of Official Conduct: 

“Efforts to expose the identity of the whistleblower are contrary to law and could expose Members of Congress to significant liability. The Intelligence Authorization Act of 2010 and the Intelligence Community Whistleblower Protection Act include specific procedures for employees, detailees and contractors within the Intelligence Community to make protected disclosures to IC elements’ inspectors general and to the congressional intelligence committees. A robust statutory framework also prevents obstruction of lawful communications by federal employees with Congress, and of congressional proceedings. The Code of Official Conduct requires that every Member of Congress ‘shall behave at all times in a manner that shall reflect creditably on the House,’ The Committee on Ethics has historically viewed this provision as ‘encompassing violations of law and abuses of one’s official position.’”


Of NoteSen. Paul has been a longtime champion of protections for whistleblowers. However, in recent months, he has argued that the whistleblower who filed a complaint against President Donald Trump alleging that he improperly withheld aid from Ukraine in an attempt to compel an investigation of the Bidens should be unmasked and confronted. 

In a fact sheet, House Oversight Committee Democrats note that Republicans previously stood “side by-side with Democrats for decades to protect the legal right of whistleblowers to anonymously report waste, fraud, and abuse.” As recently as 2017, then-Chairman and Current Ranking Member of the House Intelligence Committee Devin Nunes (D-CA) claimed publicly that protecting the legal right to whistleblowers to report abuses anonymously is vital to Congress’ constitutional oversight authority and said, “We want people to come forward and we will protect the identity of those people at all cost.” In the 115th Congress, every Republican member of Congress joined a unanimous vote in the House to increase penalties for retaliation against whistleblowers. At the time, Rep. Martha Roby (R-AL) said: 

“The reason whistleblowers face systematic retaliation is because it works. When a brave whistleblower faces intimidation or persecution for their actions, every other employee sees it and they know what will happen to them if they tell the truth. It has a powerful chilling effect. ... That’s just wrong and it’s time to punish those who do it with harsher penalties.”

The Whistleblower Protection Act (WPA) protects Federal employees and applicants for employment who lawfully disclose information they reasonably believe evidences:

  • A violation of law, rule, or regulation;
  • Gross mismanagement;
  • Gross waste of funds;
  • Abuse of authority; or 
  • Substantial and specific danger to public health or safety.  


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / Planet Flem)

AKA

Whistleblower Protection Act of 2019

Official Title

A bill to ensure whistleblowers who are Government employees or contractors receive adequate protection.

    Whistleblowers should be protected as they are hopefully operating under the assumption for the good of the public welfare, whether in government or the private sector. If the whistleblower releases information that leads to a criminal trial, then the accused should have the right to defend themselves and confront the accuser. If the whistleblower is in the right, this should not be a problem.
    Like (49)
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    No. Whistleblowers identities need not be revealed. The accused should have to answer to the merits of the claim.
    Like (114)
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    We need to protect all whistleblowers but if we disclose their identity, then we put their lives and families lives in danger. Now more than ever this is true. The rhetoric coming from this occupant of the white house and his cult has cause and increase in violence in this country. We absolutely need to remove this hateful criminal and criminal regime.
    Like (92)
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    Updated: I had to rewrite aspects if this several times as I became more and more enraged by Paul’s asinine legislation. Apologies to those who read earlier responses, … … … First, if Rand Paul actually cared at all about justice, he would be leading the charge to stop the illegal suppression of witnesses and testimony subpoenaed by the House for their investigations. In this particular case the whistleblower only reported that there were legitimate concerns expressed by others regarding what they heard and observed; and DID NOT IN ANY WAY ALLEGE THAT CRIMES WERE COMMITTED, NOR PROVIDE ANY FACTS TO SUPPORT THAT CRIMES WERE COMMITTED- only the concerns of others. The fact that Republicans want this person to testify is astonishing since they have stated that only first hand testimony is relevant. The selective questionable application of legal principles to support party goals in one instance and then to argue that opposite, contradictory legal principles must apply to another aspect in order support their party’s attempt to indemnify their prior actions demonstrates the highly corrupting influence of the regimented party-before-country, party-before-principles dominance of the Republican Party; and if there enough thinking people left in the electorate, will accelerate the demise of the current Republican Party. .… … … Otherwise; Absolutely NO to Paul’s asinine proposal. If a bystander witnesses a cartel massacre, anonymously tells police that they witnessed it, provide details of the car that was used, the weapons employed, people they saw, how they conducted the massacre, the time it happened, which way the car went afterwards and so forth - and all of these details are verified by independent investigations and asserted to by credible witnesses; Why should this whistleblower be subjected the very real threats to their lives and livelihoods by being compelled to publicly testify? Fact are facts irregardless of whoever first pointed out concerns that facts may exist. If facts are corroborated by many witnesses there is absolutely no need to identify the person who properly alerted officials. This bill makes no sense at all and would certainly prevent bystanders from ever reporting crimes. In addressing the Randy reason for proposing this, trump’s own hateful rhetoric inferring that this whistleblower is treasonous and should be subject to capital punishment is reason enough to protect their identity. The innocents slaughtered in San Antonio which was inspired by trump’s race-based hateful rhetoric highlights the danger to our patriotic whistleblower and the incredibly stupid claim that they could ever be protected from any retaliation. Particularly in the case; the whistleblower never alleged any crimes, only the concerns of others and the irregular actions that occurred that legitimately led to concerns that something inappropriate was done. Credible witnesses, who put themselves and their careers at risk validated those concerns and more. So, who exactly is the ‘accuser’ that the alleged criminal has any right to confront? The whistleblower reported concerns through legal channels and the testimony of credible witnesses validated those concerns which led directly to factually based indictable charges of wrong doing. There is absolutely no reason at all to compel him or her to testify. I suggest Rand Paul sponsor legislation to mandate imprisonment of a minimum of 5 years for any person inside or outside the government who out’s a whistleblower identity as well as an immediate removal from office of any elected official or political appointee that either out’s a whistleblower or is complicit in doing so. Then, and only then, would I even ever want to consider this ludicrous proposal. I suggest that the RNC and Republican Party start acting like officers of the court and seek truth and not to engage in distracting side-shows. If they continue to collectively cover their butts from their own complicity in not reigning in their Frankenstein president from trampling our Constitutional and legislated laws; if they continue to abuse their role in honoring their duty to perform adequate checks of the balance of powers, a much more informed and less easily misled electorate will hold them to account. A Senate trial will be as much about the perceived corrupting of the Republican Party as it is about trump’s abuses. Even if trump ‘wins’, the Republican Party may ‘lose’ big if they continue to engage in simply covering their tracks by willful tactics designed to thwart the pursuit of justice. It’s a big gamble to take. You all feeling lucky, punks!
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    Protect whistleblowers anonymity. Exposing their identity removes their greatest protection and puts them in direct danger. Good people doing the right thing to draw attention to abuse and criminal behavior shouldn’t be endangered.
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    This is absolutely unnecessary. Laws already exist. This is a shabby ploy to expose whistleblowers. Therefore, NO.
    Like (54)
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    NO. Whistleblowers' identities should remain secret. The accused has no right to face or know the identity of the whistleblower.
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    Whistle Blowers will not come forward if they believe their identities will be revealed. Imagine what atrocities would be committed if there was no fear of being found out
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    If you do reveal whistleblowers’ identities, you will be ACTIVELY discouraging such people from coming forward and reporting on the corrupt. I see though this AND so does every other voter. To the politicians who are thinking of upvoting any legislation of such corrupt spirit, be aware. You will be fired! You cannot have it both ways here. In order to protect the sources, just like in our freedom of the press practices, it is definitely never a good idea to identify the whistleblowers.
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    People really need to read the article before commenting. Do you know why this bill was even created? Because the 6th doesn’t apply to the case of the whistleblower. They’re grasping for straws to get the whistleblower named so they can try to relieve the pressure on Trump’s team by raising all kind of hell about the whistleblower. It doesn’t matter who the whistleblower actually is, all they need is a name and a face and they’ll head off on a smear campaign to destroy their reputation. If it’s a Democrat, “the commies are trying to take over! FAKE NEWS!”. If it’s a Republican, then it’s a “Never Trumper”. And if it’s neither, then they’re just a small-time nobody that no one should pay attention to.
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    Protect the only person who brought the corruption to our attention. As opposed to the professionals who had their heads in the sand and are still trying to cover it up!!
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    I don’t believe it is in their best interest to have their name revealed to the accused.
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    Revealing the identity of a whistleblower to the person they’re accusing of wrongdoing increases the likelihood that the whistleblower will face retaliation because of their disclosure. That will have a chilling effect on the willingness of whistleblowers to come forward and report misconduct.
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    Whistle blower need to not be identified! Their lives are in danger and so are their families. Retaliation will happen sooner of later by trump and the GOP stooges
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    Nay to Rand Paul S 2798 Sen Rand Paul is perpetuating Russian propaganda. ID of WB should be anonymous to protect this person who reported wrong doing by Trump Brand lawless Administration! This corruption historic! Rand Is attempting a witch hunt to please Putin. Shameful!
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    What? Really? We can’t fall into presidents chumps desire to slander someone who is protected by law now. With no protection from retaliation from such jackasses there would be no whistleblowers. Here’s a thought president punk. Stop breaking laws and demeaning those with the courage to stand up an call you out.
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    There are already whistleblower protection laws. The laws aren’t the problem here. The criminal in the White House is the problem.
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    No. Especially with this administration. Trump will go to the ends of the earth to retaliate and destroy anyone who crosses him no matter how much protection is provided.
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    An interesting juxtaposition of bill components. Let’s tell everyone who a whistleblower is and depend on everyone’s better angels to protect them. Does anyone see a problem here?
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    If a whistleblower brings information to the proper authorities that is VALID and CORROBORATED, he/she needs protection. FULL STOP! It doesn’t matter whether it’s a case of a company reporting false results in a pharmaceutical study OR impeachment.
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