Sung by Anna:
Whenever I feel afraid
I hold my head erect
And whistle a happy tune
So no one will suspect
While shivering in my shoes
I strike a careless pose
And whistle a happy tune
And no one ever knows
The result of this deception
Is very strange to tell
For when I fool the people
I fear I fool myself as well!
I whistle a happy tune
And ev’ry single time
The happiness in the tune
Convinces me that I’m not afraid
Make believe you’re brave
And the trick will take you far
You may be as brave
As you make believe you are.
— “I Whistle a Happy Tune” (from The King and I)
Music by Richard Rodgers; Lyrics by Oscar Hammerstein II (1956)
Rodgers & Hammerstein’s winsome governess, Anna, thus serenaded her charming royal children charges. Today we consider the tune sung by a bureaucrat songbird, one whom we may safely infer is no competition to Deborah Kerr in the charm department.
The Intelligence Community. Let’s begin with the legal and organizational underpinnings. In 1998, Congress passed the Intelligence Community Whistleblower Protection Act (ICWPA), amending the Central Intelligence Agency Act of 1949, and the Inspector General Act of 1978. As explained here, the ICWPA entitles complainants to file a complaint with the Intelligence Community Inspector General (ICIG), who has 14 days to respond. Notably, the law itself does not provide protection against retaliation by the employer; this was remedied by PPD-19, a 2012 presidential policy directive issued by President Obama. (The current ICIG was appointed in 2018 by President Trump.) If the ICIG accepts, it is forwarded to the director of national intelligence (DNI), who routinely forwards it to the intelligence committees in Congress. In 2016 an IC directive clarified what are “protected disclosures”: “the employee reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, or waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety.” (Intelligence agencies, but not the FBI, are part of the IC.) The president and vice president, as elected officials, are not part of the IC; small agencies within certain Cabinet departments (such as the Defense Intelligence Agency) are part of the IC.
The Justice Department has opined that the ICWPA does not apply to the president. Congress, however, has here decided — or at least, the Democrats running the impeachment inquiry have decided — that Congress may apply the law to the president. There has never been a complaint per the ICWPA lodged against a sitting or former president.
The Coup. The post-Mueller Russian collusion collapse plotters began with a surreptitious rule change. It was made in August 2019 — the complainant’s letter to House Intel Chairman Adam Schiff is dated August 12 — but only disclosed publicly on September 24, 2019. This was thus made public after Trump’s July 25 call to Ukraine president Volodymyr Zelensky — and just days before the pre-vote impeachment sessions began. The rule works as follows: the ICIG is alerted by a whistleblower, who submits a Disclosure of Urgent Concern form detailing the complaint. The previous form, adopted May 24, 2018, read in pertinent part as follows:
First-Hand Information Required
In order to find an urgent concern “credible,” the IC IG must be in possession of reliable, first-hand information. The IC IG cannot transmit information via the ICWPA based on an employee’s second-hand knowledge of wrongdoing. This includes information received from another person, such as when a fellow employee informs you that he/she witnessed some type of wrongdoing. (Anyone with first-hand knowledge of the allegations may file a disclosure in writing directly with the IC IG.) Similarly, speculation about the existence of wrongdoing does not provide a sufficient legal basis to meet the statutory requirements of the ICWPA. If you think that wrongdoing took place, but can provide nothing more than second-hand or unsubstantiated assertions, IC IG will not be able to process the complaint or information for submission as an ICWPA.
The August 2019 version simply offers two check boxes: (a) I have direct and personal knowledge; (b) I heard about it from others. Among the secondhand information offered by the accuser are articles from the ever-helpful fake-news press.
Anonymity and Impeachment. The supposed whistleblower — detractors consider him a leaker — claims through his/her attorneys a fear of harm (unspecified) if he/she goes public. No evidence of credible threats — phone calls, online messages, written letters — has been reported in the press.
Courts regularly deal with this problem. The Confrontation Clause of the Sixth Amendment provides that “the accused shall enjoy the right … to be confronted with the witnesses against him.” Both Richard Nixon and Bill Clinton were given this right in full — in each case, by a House controlled by the opposition party.
The reasons given by Adam Schiff — “reasons” is a generous term — are: (a) risk to the witness if identified publicly; (b) tip-off to Republican witnesses as to how to testify; (c) secrecy is per grand jury precedents, with the public phase at Senate trial. As to the first, absent evidence that an actual threat exists, a theoretical threat cannot suffice to deprive the president of a chance to face and have his attorneys cross-examine the accuser. As to the second, neither Nixon nor Clinton prevented the House from getting enough evidence to impeach. And as to the third, grand juries are neither picked by a partisan cabal nor are they are composed exclusively of members from one political party.
But let us go one step further. Let us assume that the witness faces a genuine threat of harm if revealed publicly. Are we prepared to impeach a president based upon anonymous testimony, not subject to cross-examination? This president carried 84 percent of counties nationwide in the 2016 election and received 63 million votes — 49 percent of all recorded votes cast.
Bottom Line. Impeachment — let alone removal — can be reluctantly accepted by the losing side if full due process, as that term is traditionally understood, is given the president. This was done in 1974 and 1998 to 1999. An essential part of such due process is the right of the accused to confront his accuser.
An anonymous key impeachment witness — the one whose complaint literally started the proceedings — is fatally inconsistent with any resolution that a broad spectrum of voter opinion will accept. This could move us even closer to all-out civil war.
John C. Wohlstetter is author of Sleepwalking With the Bomb (2014).