November 8, 2019 | News | No Comments
One of the odder sidelights of the impeachment drama is the emergence of the whistle-blower as a kind of comic-book nemesis of President Trump. “Who’s the whistle-blower? Who is the whistle-blower? We have to know,” Trump said at a rally in Dallas. He cites the word constantly, using the general term as though it were a personal title. “We must determine the Whistleblower’s identity to determine WHY this was done to the USA,” he tweeted. “The whistle-blower should be revealed because the whistle-blower gave false stories,” he told reporters at the White House on Sunday. “He made up a story.” The impression created is that the civil servant in question prowls the corridors of Washington wearing a little mask, like the Riddler’s, and a big, symbolic whistle around his neck.
The phrase “whistle-blower” derives, obviously enough, from the now largely vanished habit of a cop blowing a whistle to call attention to trouble in the streets, and also to the still-extant practice of a sports referee blowing a whistle to call a foul. Yet one has the impression that many Americans believe that this whistle-blower is, for good or ill, a person of conscience, or, otherwise, a citizen of the “deep state,” who decided to step outside normal lines in order to report the President’s phone conversation with a foreign leader. He or she may be brave or malignant, but what he or she is doing is exceptional.
In truth, the real significance of this whistle-blower’s whistle-blowing is that, rather than leaking word of the famous Ukrainian phone call to the media, he or she acted in a neatly procedural and tightly regulated manner. As sanctioned by the Intelligence Community Whistleblower Protection Act of 1998, he or she submitted the complaint to the Inspector General, who reviewed it for credibility and then passed it along to the director of national intelligence, who would have sent it to Congress for investigation if Trump’s Justice Department hadn’t blocked the normal progression. The whistle-blower is the one who is acting in the prescribed lawful way; the President and his henchmen are the ones—no surprise here—calling on the media to violate the point and purpose of the law. At an election-eve rally on Monday night in Lexington, Kentucky, where Trump and Senator Rand Paul were stumping for Matt Bevin, the Republican governor, Paul said, referring to the whistle-blower, “I say tonight to the media, ‘Do your job and print his name!’ ” (The next night, Bevin’s Democratic opponent, Andy Beshear, declared victory.) On Wednesday, Donald Trump, Jr., following a story posted by Breitbart, heedlessly tweeted the whistle-blower’s possible identity.
We do not all share, perhaps, sufficient awareness of the fact that the whistle-blower is called the whistle-blower not by some accident of tabloid nomenclature—the way that the winning quarterback of any team except the Jets is called “the franchise”—but by statute. We actually have a complex institutional and statuary system that allows men and women in subsidiary roles in government to out the wrongdoing of their superiors without fear of retaliation. (The oddity is that the whistle-blower in public life is the most visible person on the scene, even though the essence of the whistle-blower law is to shield the person.)
If you think about this, there is no end to the substance of astonishment that the statutes ought to provide. It was the essence of almost every known previous form of government to make certain that there were no whistle-blowers—that the spear-carriers just did whatever the chieftain told them to. To speak up against power was to put your life and well-being at risk. That is the usual matrix of power: obedience offered or retaliation made.
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You will sometimes read that whistle-blower statutes of a kind can be found in medieval English history, in the doctrine of qui tam, which said that, if you reported someone breaking the law for profit—for instance, a fellow-farmer working his fields on a Sunday, which was forbidden—a bit of the proceeds could go to you, in addition to the authorities. But this was really a reward for ratting on a fellow-citizen, not exposing the higher-ups.
The idea that subordinates making a legitimate claim against authority ought to be protected is a much newer idea, and one more or less associated with liberal values. Many historians track the beginning of American whistle-blowing to the 1777 case of the U.S.S. Warren, in which the ship’s officers swore out a complaint against their commander, Commodore Esek Hopkins, for, among other things, mistreating prisoners. One of the officers, all of whom were fully aware that they were putting not only their careers but their lives on the line, wrote, in words that may still resonate today, that Hopkins was “a man of no principles, and quite unfit for the important trust reposed in him,” and another asserted that “his conversation is at times so wild and orders so unsteady that I have sometimes thought he was not in his senses.” The Continental Congress, instead of siding with authority against mutiny, eventually took the side of the officers and passed a resolution declaring that “it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states.” Blow that whistle when you spot the wild and unfit leader! That was the Founding Fathers’ unambiguous message.
Subsequent legislation to safeguard whistle-blowers from retaliation, far from being a minor efflorescence of post-Watergate legislation, is widespread and effective. Our laws encourage functionaries within the government to report on skullduggery by their bosses, in the knowledge that there is an orderly, safe procedure to do it. This protection is a clear example of the way that liberal democracies try to install, like a software program, a corrective conscience in all their institutions. On a government Web site you will find a list of no fewer than twenty-three Occupational Safety and Health Administration programs and protocols for the protection of whistle-blowers. If you think you have information that an automaker has too cozy a relationship with the regulators, or that a meat-packing plant isn’t packing meat safely, you can tell it to the appropriate office and still be safe in your job. Whistle-blowing is not merely legitimate in our system; it is uniquely encouraged and protected.
A deeper question arises, though. Why is Trump obsessed with his nemesis the whistle-blower? The complaint by now has been substantiated, repeatedly, by other witnesses and by the government’s own record of the phone call in question—to the extent that the original alert is no longer anything but the remote trigger of a set of testimonies and depositions that stand or fall on their own merits. Why, then, the vengeful obsession with exposing the whistle-blower? In part, it may be because Trump knows that he can persuade at least part of his base that the person is just a servant of the opposition. In part, the rage against the whistle-blower is there to intimidate future whistle-blowers.
But the rage is also there to assert, even at some cost in relevance, the central rule of Trumpism, which is that no one can oppose Trump. The interests of the state are identical with the interests of the boss: L’état, c’est him. To a degree that we still cannot quite accept, Trump’s rage is against liberal democracy itself, for limiting his power. He is leading an instinctive assault on the rule of law, whose simplest principle is that the cops and the judges and the bureaucrats work for the state and its system, not for the current political leader and his interests—that they work for the people, not for the President. This is not a rule of the deep state; this is the rule of the self-evident state, the statuary state, the state of laws that the founders envisioned. So what we have is a simpler confrontation, one at the heart of Trump’s every political instinct. It is the contest between a Putinesque belief that a plebiscitary President embodies the will of the people and must never be challenged, and the liberal belief that the will of the people is so various that it must be dissipated through a network of laws and institutions in order to prevent anyone from ever pretending to embody it.
Federal laws do not explicitly prohibit the President—or members of the public—from outing a whistle-blower, unless the person is an undercover agent. Yet, as John McLaughlin, the former acting director of the C.I.A., pointed out, before Trump came along, nobody ever imagined that a President would think of doing it. Observance of laws “depends largely on a sense of integrity and voluntary compliance,” McLaughlin told National Public Radio. “You just have to expect people to obey the law and the established practices, which of course in this administration has not always been the case.”
Meanwhile, we should struggle to see past the cartoon tale of the baleful President and the elusive whistle-blower to the beautiful parable of liberal democracy it actually dramatizes—that the dissident is, in our system, protected in complaints against the government, and that it is the King who has to bite his tongue and let the law play out. This is hard on the King but good for citizens of a liberal state, who did not choose to be his subjects.