Why a whistleblower could do what Mueller couldn't

Why a whistleblower could do what Mueller couldn't
© Aaron Schwartz

No amount of investigation can substitute for a person of conscience voluntarily stepping up to expose misconduct — particularly when that person is an insider with off-the-record access to the facts.

That’s why, in just a few whirlwind weeks, anonymous whistleblowers have accomplished what special counsel Robert MuellerRobert (Bob) Swan MuellerFox News legal analyst says Trump call with Ukraine leader could be 'more serious' than what Mueller 'dragged up' Lewandowski says Mueller report was 'very clear' in proving 'there was no obstruction,' despite having 'never' read it Fox's Cavuto roasts Trump over criticism of network MORE’s years-long investigation could not: force House Democrats to initiate impeachment proceedings against President TrumpDonald John TrumpPelosi arrives in Jordan with bipartisan congressional delegation Trump says his Doral resort will no longer host G-7 after backlash CNN's Anderson Cooper mocks WH press secretary over Fox News interview MORE.

The first whistleblower’s damning complaint, which detailed an alleged months-long scheme to coerce Ukrainian President Volodymyr Zelensky to meddle in the 2020 election, is a demonstration of whistleblowers’ unique position in exposing wrongdoing.

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As the Mueller probe made clear, investigating complex schemes is extraordinarily difficult. Mueller faced a litany of headwinds typical of a high-stakes government investigation. Targets lawyered up and stonewalled. Key witnesses provided incomplete testimony or outright lied. Critical evidence was destroyed or otherwise made inaccessible. Despite, or perhaps because of, the formality of the investigation, the American public likely will never know exactly what transpired between Trump and the Russians.

Whistleblowers, in contrast to government investigators, gather evidence of wrongdoing while the suspect’s guard is down. In the ordinary course of his or her duties, the first anonymous whistleblower to come forward — who we now know to be a CIA officer — received valuable information from over half a dozen White House insiders who were shocked by the president’s conduct. These individuals in all likelihood never suspected that their candid assessments might be used against the president. 

This unfiltered access allowed the whistleblower to take us where Mueller never could: inside the room where the misconduct occurred. The whistleblower’s complaint not only recounted the damning details of Trump’s call with the Ukrainian president, but also the scramble to cover it up. It’s probable that none of these details would have emerged if the president and his defenders had been given the opportunity to deflect and dissemble afforded by a formal investigation. 

Moreover, the whistleblower promptly identified other avenues of investigation — including already-corroborated allegations that the White House routinely abused the classification system to shield transcripts of other politically damaging, and potentially improper, presidential calls. 

Whistleblowers also embolden others with inside information to come out of the woodwork. Within weeks of the release of the CIA whistleblower’s complaint, we now know that at least one other whistleblower — this one a percipient witness to Trump’s July 25 phone call with the Ukrainian president — is ready to speak out. Formal investigations rarely lend the moral clarity needed to bring not one but multiple sources to the fore.  

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To be sure, Trump has hastened his own possible impeachment by confessing to much of the underlying conduct and releasing a damning summary of his call with the Ukrainian president. Such miscalculations are common in whistleblower cases and highlight the efficacy of whistleblowing. Once a suspect realizes that a whistleblower has exposed them, they can either roll over or dig in. All too often, they choose the latter. 

When Enron whistleblower Sherron Watkins confronted CEO Kenneth Lay just months before the company went bankrupt, Lay rebuffed her concerns and falsely reassured investors that the company was on strong footing. Five years later, prosecutors used this critical moment to establish Lay’s criminal intent and secure his conviction on fraud charges. With contrition never on the table for an unrepentant president, he too chose to double down, offering implausible and easily disproved excuses. In the process of trying to dance around the insider’s account, the president handed House Democrats a smoking gun registered in his name.

These still-unfolding events show exactly how whistleblowers can blow a case open in an instant, boxing in suspects and conserving valuable investigative resources. That’s precisely why a broad array of federal laws not only protect whistleblowers from retaliation but also encourage them to come forward with significant financial incentives. These whistleblower-reward programs are designed to deputize private citizens to expose fraud, aiding agency enforcement mandates. Notably, none of these programs requires “first-hand” information, contradicting the president’s go-to talking point that the whistleblower’s complaint is inherently untrustworthy.

As national security whistleblowers, the anonymous officials have no entitlement to a financial reward, a factor that often tips the balance in favor of blowing the whistle despite the inherent personal and professional risks — risks made all too clear in the president’s brazen threats, including suggestions that whistleblowers be executed. Motivated by nothing more than a nagging conscience, these whistleblowers have discharged their duties. Congress should now discharge its own and turn the nation’s attention to the impeachment proceedings, where the president’s conduct, not the whistleblowers, will be judged.

Chris McLamb and Leah Judge represent whistleblowers at the law firm Constantine Cannon LLP.