EXCLUSIVE: Trump-Ukraine issue is about suitability and competence of President Trump, says expert
On September 24, House Speaker Nancy Pelosi launched a formal impeachment inquiry into President Donald Trump over allegations of him influencing the leadership of Ukraine over phone to investigate his domestic political rival Joe Biden and his businessman son Hunter. Trump’s opponents united over the issue after an intelligence whistleblower lodged a formal complaint about the controversial phone call(s) between Trump and his Ukrainian counterpart Volodymyr Zelensky in July. While the president felt his talks were perfectly fine, his political opponents and critics saw it as a gross misuse of power to make political gains. However, even after the impeachment was launched, Trump said China also should probe the Bidens.
Even if impeachment is seen more as a political phenomenon, the case involving Trump has also various legal sides to it. Trump and his defenders refused to acknowledge it as a case of whistleblowing and more as a “deep state operative” while the president accused the whistleblower of treason. It is also being debated that the intelligence community “secretly eliminated” a requirement that whistleblowers give first-hand knowledge of the alleged wrongdoings to accommodate the charges against Trump.
For a better understanding of the issue, MEA WorldWide (MEAWW) spoke to Dr. Kaeten Mistry, a senior lecturer in American history at the University of East Anglia. He is an authority on the issues of whistleblowing and America’s national security and the politics and culture of informational disclosure and is associated with similar projects. He has co-edited the upcoming book 'Whistleblowing Nation: The History of National Security Disclosures and the Cult of Secrecy.'
Dr. Mistry, who organized an event with New York University in January on whistleblowers and the press involving the likes of Edward Snowden and John Kiriakou, felt the current Trump-Ukraine issue is one of organizational whistleblowing unlike the one involving Snowden which is public-interest whistleblowing. According to Dr. Mistry, the whistleblower in the Trump case followed all internal reporting rules but yet it was unusual that it reached Congress. He said it only showed how much the process was flawed.
Here are excerpts from the interview that Dr. Mistry gave to MEAWW:
MEAWW: Technically, is the Trump-Ukraine issue about whistleblowing? The administration is saying it's more of a deep state operative than whistle-blowing. What's your view on this?
Dr. Mistry: The broader Trump-Ukraine issue is about a lot of factors around the suitability and competence of President Trump. But the whistleblowing episode has brought added attention and crystallized the issue for many observers, largely around how the office of the president is being used for political-personal goals. The Trump administration and its supporters may suggest it is about spying, deep-state operations, etc. But this does represent a case of whistleblowing in layman's terms: calling out abuse, fraud or wrongdoing. The whistleblower reported through formal channels and has appeared to have done everything by the book.
MEAWW: What immunity does a whistleblower have in the American establishment?
Dr. Mistry: Federal whistleblowers have enjoyed formal legal protection from retaliation (i.e. being fired, scapegoated, sidelined) since 1989. The Whistleblower Protection Act does have a narrow definition of whistleblowing and, moreover, excludes those working in areas of national security. There have been other acts brought in recent decades for employees of the military and intelligence communities but, again, this has defined whistleblowing narrowly in terms of waste, fraud, and abuse.
Many observers and advocates have questioned how much protection they actually provide and point to examples of whistleblowers being attacked for using the channels. Thomas Drake was one famous recent example. What's interesting about the Ukraine-Trump case is that the historic partisan approach on the issue has broken down. Normally, Congress and the executive agree on what is a state-defined version of whistleblowing.
Going back to the question though, the whistleblower should receive protection against retaliation but this is in no way a form of immunity. And they could still be charged for other offenses (i.e. related to handling national defense information).
MEAWW: This is a case of institutional whistleblowing. Is there any similar precedent in American history?
Dr. Mistry: This is a case of institutional whistleblowing that looks out for the interests of the organization. There appears to be a goal of enhancing US policies and national security. This fits the narrow definition of whistleblowing noted above. There are some examples in history, chiefly Ernest Fitzgerald in the 1960s. Interestingly, Fitzgerald was initially fired by Richard Nixon for his whistleblowing. Only later was his reputation rehabilitated as a whistleblower. But if we consider the most prominent cases - Daniel Ellsberg, Chelsea Manning, Edward Snowden - the state rejects the idea that they are whistleblowers. Ellsberg, Manning, Snowden were whistleblowing in public interest. The state considers them as cases of "unauthorized disclosure" and charged them under the Espionage Act. There is a major divide between how the state defines whistleblowing and much of the public.
MEAWW: Can Trump be impeached with this charge?
Dr. Mistry: It is hard to tell if the charge will stick. In and of itself, the whistleblowing claim is not enough. But it comes on top of a list of allegations against Trump. The impeachment process will likely run in the House of Representatives since it is controlled by the Democrats. But it seems unlikely to be passed in the Senate, which is controlled by Republicans. It is hard to tell if the charge will stick against Trump.
MEAWW: Trump is claiming the rule that whistleblowers should have first-hand knowledge was changed in August. Is that true?
Dr. Mistry: There is nothing to say that a whistleblower needs to have first-hand knowledge. Normally, they will of course. Washington and the media are rife with rumors as to the identity of the whistleblower. It is probable that the person will soon be revealed. Some legal colleagues have even suggested that there may be more than one whistleblower, at least not simply one person acting alone. We shall see. But the whistleblower letter was an extraordinarily well-written piece with thorough legal referencing. That sort of writing is quite rare for an average intelligence officer.
MEAWW: The whistleblower complaint was held back for weeks citing 'executive privilege.' What's the process of a whistle-blowing document reaching the Congress?
Dr. Mistry: Executive privilege continues to hold lots of weight in the conduct of US foreign policy and national security information. Historically, what the president does or says was considered to be legal. This started to be challenged in the 1970s but the executive still has much power and influence. It appears clear that there was an attempt by the executive to block this letter from reaching Congress. The regular channel is for the inspector general of the intelligence community to pass the issue to the Office of the Director of National Intelligence, who relays it to Congress. Joseph Maguire's office held the letter back, which was why he was called to testify to the House Intelligence Committee last week. It was because of the Democrats’ insistence that the letter emerged and Maguire testified.