Trump could use leak investigations to impede House oversight
© Stefani Reynolds

One of the first things President TrumpDonald John TrumpProsecutors investigating Trump inaugural fund, pro-Trump super PAC for possible illegal foreign donations: NY Times George Conway: Why take Trump's word over prosecutors' if he 'lies about virtually everything' Federal judge says lawsuit over Trump travel ban waivers will proceed MORE tweeted after Democrats regained the House in the midterm elections was a threat that he would retaliate against Congressional oversight efforts by investigating House Democrats for leaks of classified information. Trump’s threat should spur real action to protect whistleblowers and sources as a critical step toward restoring the effectiveness of congressional oversight.

While it would be easy to write off this tweet as Trumpian bravado, there is a very real history of using criminal investigations -- including charges under the Espionage Act -- to obstruct oversight and effectively demote Congress to a second-class branch of government. This kind of obstruction is not new. It spans multiple administrations. But now, as in so many other aspects, Trump has explicitly given away the game.

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While members of Congress have the Constitutional right to release classified information to the public, the executive branch has aggressively investigated and retaliated against the whistleblowers who lawfully bring disclosures to Congress. Thomas Drake, for example, was warned by NSA leadership not to go to Congress because the agency was “looking for leakers”. In 2014, CIA leadership was provided intercepts of protected whistleblower communications. Criminal leak investigations have even been weaponized against congressional staff members, as in the case of Diane Roark, or the Senate staffers investigating the CIA torture report.

Whistleblowers are critical sources of information for representatives and committees, who lack adequate staff and budgets to keep up with sprawling, secretive bureaucracies. The executive branch has increasingly stonewalled congressional subpoenas and requests for information, aided by a judiciary that is excessively deferential to claims of national security and ever-expanding assertions of presidential power.

Some of the most important investigations of the Trump administration will be national security related, such as the Mueller inquiry, the crackdown on immigrants by ICE and the military, and the use of federal law enforcement to surveil and harrass racial and religious minorities. Trump’s fascist tendencies are executed primarily through secretive defense and intelligence agencies such as the FBI, the Department of Defense, and Homeland Security. Unfortunately, those agencies are specifically exempted from most federal whistleblower protections. There is a very real possibility that a key whistleblower to Congress or to the Mueller investigation could be charged with espionage.

We have been saying from the beginning that the purpose behind criminal leak investigations and the war on whistleblowers is not actually about protecting classified information; rather, it is about avoiding democratic oversight and accountability. Now a sitting president has publicly said as much. It is long past time for Congress to take notice and take action.

Jesselyn Radack heads the Whistleblower and Source Protection Program (WHISPeR) at ExposeFacts, where she provides legal representation for clients such as Edward Snowden, Thomas Drake, John Kiriakou, and Diane Roark, and was herself a whistleblower at the Department of Justice under the Bush administration. William Neuheisel is the Program Manager at WHISPeR.