This article, featuring our Legal Director Tom Devine, was originally published here.

Lawyers For Trump-Ukraine Whistleblower Have a Tough Road Ahead

The Ukraine whistleblower faces dire consequences—from workplace retaliation, to criminal charges and losing his or her career—so lawyers must craft a unique strategy to protect this client as much as possible.

The attorneys representing the Trump-Ukraine whistleblower are navigating a terrain fraught with serious risks to their client, which could bring career risks and criminal liability if they do not strictly adhere to whistleblower guidelines.

This is why keeping the whistleblower’s name a secret is paramount as counsel continue negotiations for Congress to secure the person’s testimony in potential impeachment proceedings against President Donald Trump. The whistleblower alleged that Trump suggested he would withhold government aid to Ukraine unless the country’s president did Trump a “favor” of investigating Democratic presidential candidate Joe Biden and his son, Hunter Biden.

“All agree protecting [the] whistleblower’s identity is paramount,” said a tweet by Mark Zaid, one of the attorneys representing the whistleblower.

History shows that government whistleblowers, especially those who disclose national security information when revealing government malfeasance, often land in prison unless they have competent counsel to help them make their disclosures using the exact right legal procedures. Even the whistleblowers who do everything right often face retaliation at work, and in the end, they could lose their careers in the intelligence community, attorneys say.

“The lesson I’ve learned from doing this so long is the more significant the threat to abuses of power, and the more powerful the abuser, the uglier and more intense the retaliation. This whistleblower couldn’t have picked a bigger target, or a target that has been more ruthless in trying to destroy anyone who threatens him,” said Tom Devine, who’s represented about 1,000 whistleblowers as legal director of the Government Accountability Project, a Washington, D.C.-based nonprofit that assists whistleblowers.

Criminal consequences

Whistleblowers who don’t consult an attorney before making a disclosure are certain to take the wrong path and land in trouble, said Zaid, who’s representing the Ukraine whistleblower alongside Andrew Bakaj and Charles “Chuck” McCullough, both of Compass Rose Legal Group. He said the Ukraine whistleblower did follow the right path, and shouldn’t face criminal liability.

Because others didn’t follow the legal procedure, Zaid said, he doesn’t think the “whistleblower” moniker should go to people like Reality Winner, who’s serving five years in prison for leaking classified documents to the media about Russian hacking in the 2016 election, and Chelsea Manning, who was convicted after giving a treasure trove of classified records to WikiLeaks.

“You can’t be a whistleblower if you are criminally leaking classified information, as a matter of law. You have no protection whatsoever,” said Zaid, managing partner in Mark S. Zaid in Washington, D.C.

When a government whistleblower does face criminal charges, attorneys face extraordinary hurdles to defend the case, according to Atlanta solo practitioner Titus Nichols, one of the criminal-defense attorneys for Winner.

Discovery was difficult because the government argued that certain documents were classified and couldn’t be released to defense counsel, he noted. Widespread publicity of the case also made the defense difficult.

“Everything we did was scrutinized by the media and government prosecuting my client,” Nichols said. “We were very, very careful to stay within the specified guidelines in terms of communications among the legal team, and discussions with the media.”

NIchols, like Zaid, said that because the Ukraine whistleblower filed his or her complaint with the Office of Inspector General, rather than leaking information to the news media, it’s possible this whistleblower will escape criminal liability.

But in the past, even whistleblowers that did file complaints legally haven’t escaped the threat of criminal prosecution.

For example, Thomas Drake followed the rules meticulously when he blew the whistle on a National Security Agency program called “Trailblazer Project” for invading the privacy of U.S. citizens, said Devine, who represented Drake with the Government Accountability Project.

But later, after a separate NSA employee leaked information to the New York Times about NSA domestic surveillance programs, the government suspected the leaker was Drake, Devine said. He then faced 10 criminal charges, which were dismissed when he plead guilty to one misdemeanor charge for improper use of a government computer.

“He played by all the rules,” Devine said.

Professional Suicide

Even without drastic criminal consequences, Devine says he calls government whistleblowing “professional suicide” because of how the government reacts.

“The power structure tries to destroy any employee who’s exposing abuses of authority that could threaten its ability to continue them,” said Devine.

For example, he has represented whistleblowers whose employers retaliated by moving their desks into the hallway to humiliate them, or reassigned them away from their areas of expertise and made them work in the cafeteria, he noted.

Devine added that there are more than 60 federal whistleblower laws that provide protection against retaliation, but many of them “aren’t worth the paper they’re printed on.” When whistleblowers file litigation over retaliation, only 5% of those cases win on the merits, he explained.

Bill Weaver, former board member of the now-closed nonprofit National Security Whistleblowers Coalition, said it’s almost certain that the Ukraine whistleblower will see his or her security clearance and access to classified information removed right away. This destroys the person’s ability to do their job.

The best an attorney can hope for is negotiating a workplace exit that provides some funds for the whistleblower, said Weaver, director of the Patti and Paul Yetter Center for Law at the University of Texas at El Paso, who quit advising in whistleblower cases because he was frustrated that they all ended so badly.

“The end is written as soon as the person makes a complaint or blows the whistle,” he explained. “This person is never going to be inside the intelligence community again. It’s just never going to happen.”