Can the whistleblower's reputation survive President Trump's impeachment defense?
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Now that the impeachment train has left the station, can the whistleblower’s reputation survive the furious negative twitter campaign that the president is sure to lead? The impeachment report published by the House Intelligence Committee highlighted some of the president’s prior attacks on the whistleblower, labeling them as “threats” designed to create a “chilling” effect on witnesses. But now that the impeachment case is clearly headed to a Senate trial, what will become of the whistleblower?

As attorneys who have represented whistleblowers from all political perspectives, we hope that President TrumpDonald John TrumpWith VP pick, Biden can't play small ball in a long ball world Coronavirus hits defense contractor jobs Wake up America, your country doesn't value your life MORE, members of Congress and partisans from all sides take a step back and study the important legal precedents designed to protect confidential informants like the Ukraine-Trump whistleblower. The starting point has to be the federal obstruction of justice statute. As explained below, this should also be the ending point of any such analysis.

The basic question is whether or not the President Trump’s public tweets and statements against the whistleblower can constitute a criminal obstruction of justice? Or, are his opinions protected under the First Amendment? The president may not be able to be indicted for a crime while sitting in the Oval Office, but if his tweets are illegal, they must stop and his followers cannot join in on these attacks.

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By coincidence, just one month before Trump started his tweet storm against the whistleblower, three U.S. Court of Appeals judges considered these very issues. In the case of U.S. v. Edwards, decided on Aug. 16, 2019, the court considered the constitutionality of the obstruction of justice law designed to specifically cover whistleblowers. Like most of the comments at issue in the Trump matter, the statements at issue in Edwards were all published on social media (i.e. Facebook). They contained no direct threats against the whistleblower and did not ask anyone to harm an informant to federal law enforcement.

Significantly, although the whistleblower who was the target of the social media attacks in Edwards had been a confidential informant to the United States, unlike the Ukraine-Trump whistleblower, his identity had been revealed in a court case.

The judges who decided the case were not members of the “Deep State” or Obama plants. All were appointed to the federal bench by Republican presidents, and one was a recent Trump appointee.

These judges carefully reviewed a criminal conviction under the federal obstruction law designed to protect whistleblowers. The defendant, Joy Edwards, was the sister of an individual to whom the whistleblower had testified against. Edwards was indicted and convicted of obstruction simply on the basis of posts she made on Facebook. In her postings she had accused a confidential informant of being a “snitch,” a “rat”, a “snitch ass bitch,” among other things, and re-posted images and derogatory statements about the informant. Unlike President Trump, whose twitter account reaches millions (over 62 million followers at last count), Joy Edwards only had 600 Facebook friends.

Joy Edwards initially challenged her indictment in the district court. Her challenge was based on the First Amendment. Edwards claimed her Facebook posts were protected speech. The District Court easily dismissed these arguments, noting that “protections afforded by the First Amendment” are “not absolute.” The Court also noted that “words” alone can constitute criminal actions, such as words used to engage in blackmail or fraud.

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Thereafter, the case went to trial, and the evidence against her were her Facebook postings. Edwards was found guilty and sentenced to three months in prison, three months in a halfway house, three months in home detention and three years of supervised release. She became a felon and sentenced to jail based on her retaliatory anti-whistleblower Facebook postings. Not surprisingly, she appealed the verdict.

Before the U.S. Court of Appeals for the Sixth Circuit (a conservative court one level below the U.S. Supreme Court), the defendant completely abandoned her First Amendment claims, most likely recognizing they were frivolous. She went on a new attack.

First, she urged the three Republican appointed judges to throw out her conviction because there was no evidence that she intended to retaliate against the informant by posting on Facebook. She said that she never asked anyone to retaliate, and there was no evidence that she made any direct threats. She told the judges that “she never advocated any retaliatory conduct (physical violence or otherwise)” against the informant.

But the Republican judges dismissed these objections. They noted that intent can always be proved by circumstantial evidence, and that the “context of the Facebook posts” themselves demonstrated the necessary intent. Interestingly, the court went further and looked at the “negative comments” generated by the defendant’s posts. These negative comments published by third parties (none of whom were indicted) cinched the case: “a rational trier of fact could easily conclude beyond reasonable doubt that someone who continued to engage in that activity” (i.e. posting the negative statement about the informant on Facebook) after the negative responsive comments were received “intended the foreseeable negative consequences.”

In the case of the Ukraine whistleblower, the negative responses published on the @realdonaldtrump Twitter account are particularly threatening and abrasive. They included comments published on Trump’s Twitter account on Sept. 27 calling the whistleblower a “deep state creep,” accused him of being a “criminal,” of engaging in a “conspiracy” against the president, and “rouge and traitorous” conduct. There were calls for the whistleblower to be “prosecuted” and worse. The whistleblower’s counsel reported that the whistleblower obtained actual death threats following Trump’s tweets. Despite these concerns, Trump’s derogatory tweets continued.

Next, the defendant in Edwards argued that her Facebook postings did not cause the informant any actual harm. The whistleblower was not assaulted or fired from any job. But a whistleblower covered under the obstruction of justice statute need not be fired or suffer any direct harm to be fully protected. The Edwards court noted that the informant testified that he “feared” for his and his family’s safety, and that a member of his family received a “threat” after the defendant’s Facebook postings. This was more than enough to land the defendant in prison.

Finally, the defendant argued that the obstruction statute was unconstitutionally “vague” as it criminalized “everyday activity on Facebook.” Again, that defense was struck down. The three judges noted that the obstruction statute designed to protect whistleblowers was “sweeping” in its scope. As the court reasoned, an “ordinary person” would understand the “conduct it prohibits.” Indeed, the obstruction law that protects whistleblowers such as the Trump-Ukraine whistleblower is indeed sweeping in scope. It prohibits “any action harmful to any person” who provides information to federal law enforcement.

No one should be surprised that three Republic-appointed judges, including a Trump appointee, upheld the constitutionality of the obstruction law, and affirmed the defendant’s felony conviction for derogatory Facebook posts. Whistleblowing has traditionally enjoyed strong bipartisan support. The law used to prosecute the defendant in the Edwards case was introduced by the former Republican chairman of the House Judiciary Committee (and a current member) Rep. James Sensenbrenner (Wis.). The final law that included the Sensenbrenner amendment as part of a corporate anti-fraud law was approved by the Senate on a 99-0 vote, and in the House by a 423-3 vote.

President Trump needs to take a hard look at what he has posted on Twitter and the statements he has made in public regarding the whistleblower. He should review the comments his attacks have spawned, the mounting evidence that the whistleblower has suffered from actual threats triggered by the president’s comments, and the formal “cease and desist” letter written by the whistleblower’s attorney. There may still be time for the president to take-down his Twitter posts attacking the whistleblower and urge his millions of followers to stand-down and stop their threats.

Joy Edwards, the defendant in the U.S. v. Edwards case received a severe life-changing penalty for her posts on social media. Is there equal justice under the law? Or, are the most powerful people afforded a “get out of jail free” card based on their status, money or position?

Stephen M. Kohn, Michael D. Kohn, and David K. Colapinto are the founders of the National Whistleblower Center and partners in the whistleblower rights law firm of Kohn, Kohn and Colapinto.