Throughout his political career, Senator Rand Paul has been a strong advocate for constitutional rights. Indeed, he has bucked his party on key issues when he felt that liberty interests were at stake, including his strident opposition to the FISA warrantless surveillance program. In light of his track record as a stalwart defender of the First Amendment and privacy rights, it is surprising that he is leading the crusade to unmask and combat an alleged “deep state” conspiracy of whistleblowers.
Notwithstanding the fact that the Intelligence Community (IC) whistleblower and his counsel continue to be subjected to death threats and other retaliation, on February 4, 2020, Senator Paul, in a speech on the Senate floor at the close of President Trump’s impeachment trial, read the following question (albeit without redacting the names of individuals that he suspects to be whistleblowers):
“Are you aware that House Intelligence Committee staffer [name redacted] had a close relationship with [name redacted] while at the National Security Council together, and are you aware and how do you respond to reports that [names redacted] may have worked together to plot impeaching the president before there were formal House impeachment proceedings?”
This is the question that Chief Justice Roberts refused to read during the impeachment trial. It has no relevance whatsoever to the articles of impeachment and it defies common sense that any IC employee would destroy their career and jeopardize their safety to score political points. As the IC whistleblower’s allegations have been corroborated by several highly credible witnesses, there is no legitimate reason to attack a whistleblower who initiated an investigation in a responsible manner. Indeed, in the words of Acting Director of National Intelligence Joseph Maguire during his September 26, 2019 testimony, the whistleblower “acted in good faith throughout” and did “everything by the book and followed the law.” In contrast, a political actor in the IC plotting to impeach the President presumably would leak information to the media, not report information through the appropriate, lawful channel. The only ostensible reason for Senator Paul’s question is to chill whistleblowing during this Administration.
Senator Paul is not alone in his zeal to punish whistleblowers and dissuade other public servants from fulfilling their ethical duty to “disclose waste, fraud, abuse, and corruption to appropriate authorities,” a duty set forth in the Standards of Ethical Conduct for Employees of the Executive Branch. See 5 C.F.R. § 2635.101(b)(11). Senator Graham has pledged a thorough investigation of the “deep state” conspiracy, stating on Fox News: “The day of reckoning is coming . . . If the whistleblower is a former employee of, associate of, Joe Biden, I think that would be important. If the whistleblower was working with people on Schiff’s staff that wanted to take Trump down a year and a half ago, I think that would be important. If the Schiff staff people helped write the complaint, that would be important. We’re going to get to the bottom of all of this to make sure this never happens again,” Graham announced in a February 2, 2020 interview with Maria Bartiromo. In that interview, Senator Graham did not rebut the whistleblower’s disclosure and instead focused on uncovering the whistleblower’s potential association with alleged enemies of the President.
Although there is undoubtedly short-term political gain for Republican senators leading this crusade against a “deep state” conspiracy, they may come to regret undermining the First Amendment right to association. In particular, outing a whistleblower and forcing that whistleblower to reveal the names of other whistleblowers will result in harassment of whistleblowers, threats of physical violence, and otherwise chill associational rights. If Republicans are performing oversight of a Democratic president in the future, they will depend on whistleblowers to come forward and voluntarily participate in oversight investigations. And a political party focused on reducing wasteful spending should be eager to encourage civil servants to root out waste, fraud, and abuse.
First Amendment Freedom of Association
The Supreme Court has held that the First Amendment encompasses freedom to associate and privacy in one’s associations and that “[i]nviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association.” NAACP v. Alabama, 357 U.S. 449, 462 (1958). The right of association was especially critical for civil rights advocates, including the NAACP, as they resisted harassment and efforts to shut them down by discouraging donors. Some of the seminal decisions recognizing the First Amendment right to association include:
- NAACP v. Alabama, where the Court held that compelling a private organization to reveal the identities of its members where such disclosure would result in the harassment of existing members and the discouragement of new members violates the right to freedom of association.
- NAACP v. Button, 371 U.S. 415 (1963), recognizing the NAACP’s right to refer individuals who wanted to sue in desegregation cases to lawyers and to pay their litigation costs. In particular, the Court struck down a Virginia law prohibiting an organization from compensating an attorney in a case in which it had no monetary stake. The Court explained that the Virginia statute would discourage litigation on behalf of the NAACP and that “broadly curtailing group activity leading to litigation may easily become a weapon of oppression.” at 435, 36. In ruling against the constitutionality of the statute, the Court relied on precedent recognizing freedom of association and analogized its refusal to compel disclosure of one’s association with a certain political party to the instant case, noting that “[h]istory has amply proved the virtue of political activity by minority, dissident groups.” Id. at 431 (citations omitted).
In recent years, Republicans have been especially strong proponents of robust associational rights, relying on the right of association to challenge campaign finance laws and asserting that the IRS violated the First Amendment when it investigated whether some Tea Party organizations complied with non-profit regulations. Indeed, Senator Paul accused the IRS of “persecuting people for their religious and their political beliefs” and demanded that “it needs to end now.” WJLA, Tea Party rally draws thousands to Capitol grounds.
Freedom of Association Protects the Identities of Whistleblowers Acting Collectively to Expose Wrongdoing
In addition to the right of whistleblower confidentiality enshrined in the Inspector General Act, the First Amendment right of association is a compelling justification to bar “outing” a whistleblower or compelling a whistleblower to out other whistleblowers.
About three decades ago, the Government Accountability Project (GAP), a non-partisan organization that defends whistleblowers, received a subpoena from the Nuclear Regulatory Commission (NRC) concerning GAP’s representation of whistleblowers disclosing safety concerns about the South Texas Project, a nuclear plant nearing completion southwest of Houston. GAP provided information about their clients’ safety concerns but omitted the informants’ names and other identifying information on the basis that compelled disclosure of their identities would undermine GAP’s ability to assist whistleblowers in presenting safety concerns to the NRC and the public.
The district court declined to compel the production of the whistleblowers’ identities because they provided information to GAP with the understanding that their identities would be protected. United States v. Garde, 673 F. Supp. 604 (D.D.C. 1987), appeal dismissed, 848 F.2d 1307 (D.C. Cir 1988). Judge Hogan held: “[I]f the government is successful in compelling Ms. Garde to reveal the information given to her, especially the identity of those she represents, GAP will lose the confidence of some of its whistleblower informants and its efforts to gather and present safety allegations will suffer. This is the harm that GAP claims, and it is cognizable under the right to association.” Id. at 607.
In Garde and other cases addressing the scope of the freedom of association, courts weigh the infringement of constitutionally protected rights against the government’s compelling interest in obtaining the information. Outing the IC whistleblower and forcing them to disclose the identities of other whistleblowers serves no interest other than pleasing President Trump. Before implementing a plan to misuse Senate oversight authority to conduct a moot “witch hunt” calculated to punish and silence whistleblowers, Republican Senators should consider the harm they will inflict on the First Amendment freedom of association.
Note: This post focuses on the First Amendment implications of launching a retaliatory investigation of whistleblowers. Several articles address additional statutory and policy grounds for protecting a whistleblower’s identity, including the following:
Kel McClanahan, Q&A on Whistleblower Complaint Being Withheld from Congressional Intelligence Committees, Just Security
Thomas Devine, Fast Facts on Legal Accountability for Outing the Anonymous Whistleblower, Government Accountability Project blog
Robert S. Litt, The Whistleblower Should Not Have to Testify, Lawfare
Danielle Brian, Stop Attacking the Right to Report, POGO blog
Tom Devine and Mark Hertsgaard, Trump and the Whistle-Blower He Hates, The Nation