public official Those who report possible illegal activity will almost certainly be targeted by a second Trump administration. Mark Zaid is the lawyer who will represent some of them. Over the past 20 years, he has provided legal advice to many federal employees and intelligence officers, including whistleblowers.
But his most high-profile whistleblowing case was that of an intelligence officer who reported to the inspector general that then-President Donald Trump had pressured Ukrainian President Volodymyr Zelensky to find political dirt on his rival. As Trump clung to military aid to Ukraine that Congress had already approved, he asked Zelensky to investigate the family of Joe Biden, the leading Democratic challenger to face Trump in 2020. The whistleblower’s 2019 report led to Trump’s first impeachment.
The case of the whistleblower, whose identity Zaid has never revealed, is not the first time a concerned citizen has come forward with potentially damaging information about the government. In 2002, FBI Special Agent Coleen Rowley wrote a letter to then-FBI Director Robert. Special Counsel Mueller argued that the FBI failed to properly investigate terrorists found to be involved in the September 11 attacks. Another whistleblower was military policeman Joseph Darby, who in 2004 shared photos of U.S. soldiers torturing prisoners at the Abu Ghraib prison in Iraq to the Army’s Criminal Investigation Department.
In the early 2000s, two whistleblowers reported their claims to the relevant authorities through appropriate channels. They received professional and physical safety protections in return, but still faced personal challenges. Future whistleblowers are likely to face much more serious situations.
This interview has been edited for length and clarity.
What has changed in whistleblowing since the first Trump administration?
The Ukrainian intelligence whistleblower case was like countless other cases I had handled decades ago. Once a whistleblower has come forward with reasonable concerns and the matter has been dealt with lawfully and appropriately according to established procedures, we have helped that individual move through the process by: Make sure you are fully protected. What makes this case so different is that it involved the President of the United States, and that the President and his allies made it personal and ignored norms and standards they believed existed in other cases.
Is the risk of retaliation higher in Trump’s second term?
What’s really inconvenient is that the prosecutor’s Supreme Court ruling on January 6 effectively grants him near to complete immunity from presidential-type actions. So if he takes away our security clearance, he will be protected. If he instructs his agency not to take seriously what we as lawyers can do for our clients and retaliates against our clients, he will be protected. He would be protected if he ordered an IRS audit to find out what happens to whistleblowers or his critics. This is broad enough authority that he could hypothetically shoot someone on Fifth Avenue, potentially giving him legal protection if he did so as part of his duties as president.
Is there any relief for those targeted?
Suppose the President said this on his first day in office: “Here is a list of 150 people who have worked against me. Therefore, they pose a threat to America’s national security. Accordingly, their permits will be revoked.” That’s the end of the road. You do not have the ability to legally challenge it in any actionable manner. The real defense for many federal employees and critics will be time and transparency. If he issues an executive order to eliminate civil servant protections, there may be some legal actions we can take. There will be litigation, and we may be successful in one or more of the lawsuits. But maybe it will be during the next administration. Because 4 years is not that long of time to file a lawsuit. claim… I have had instances where Congress has intervened with the executive branch in national security cases to protect whistleblowers. But for that to happen, all the stars must come together and become the party of the majority, not the minority.
Who do you think Trump will target?
Perhaps the people he most often criticizes are General Mark Milley and Special Prosecutor Jack Smith. Oddly enough, no one has ever heard Jack Smith speak. But all the documents have his name on them, making him a target. I’m not too worried about anyone serving in Congress, past or present, because I doubt any Republican would support this, except for a few extremist MAGA believers.
And journalists can be involved too, right?
I totally look forward to it. There is no journalistic privilege for classified information, or what the Espionage Act calls defense information. Disclose, disseminate, print, or Publishing such information exposes all journalists and media outlets to prosecution. The only thing that prevented this from happening for a century was public policy, practice, and norms. Perhaps none of that will exist in a second Trump administration. It’s easy to see how journalists’ cellphones are tapped, journalists are physically surveilled, emails are seized, all through judicially issued warrants in an effort to prosecute those responsible for leaks.
What protections do whistleblowers receive? estimated take?
Your identity must be protected when it passes through the Office of the Inspector General. My colleague took a Ukrainian whistleblower to the Office of the Inspector General and filed a formal protected disclosure, legally ensuring that the Inspector General could not reveal the individual’s identity. During the Senate impeachment trial, Sen. Rand Paul (R-Ky.) submitted questions listing the names of individuals he believed to be whistleblowers, and these were the only questions the Chief Justice refused to read aloud and threw out. . Although there was nothing legally required to do so, the Chief Justice recognized the need to protect the identity of whistleblowers, especially when they pursue their own path through appropriate and legal channels.
We later learned that the White House was intentionally leaking the identity of the whistleblower to numerous media outlets. And the media outlet, to their credit, refused to publish the article. But the White House knew who the whistleblower was and was clearly pushing the name. Nonetheless, at least they were doing it quietly behind the scenes and the system still worked. In a second Trump administration, I have no doubt that Donald Trump at the podium with others in his administration will simply say names.
That’s a great follow-up question to my next question. That is, what can happen, rightly or wrongly, when someone is identified as a whistleblower?
Of course, you may be subject to administrative action. But of greater concern are the physical threats of violence and harassment from non-government figures who believe they will defend and support the President of the United States by taking action against perceived traitors.
As a whistleblower’s lawyer, I received armed protection for two months with bodyguards living with me 24 hours a day due to death threats. And I knew what happened every time the threat increased, usually people like Rush Limbaugh, (Sean) Hannity, Laura Ingraham or (Tucker) Carlson called my name.
Have people started reading your book as a precaution?
I can’t say the numbers are high, but there have certainly been individuals working within the federal government who have contacted me in anticipation of retaliation.
What else can relevant officials do?
Do not do anything on government computers or government phones. Be careful when printing anything from government computers. Be careful no matter who you speak to. We are literally back in the days of the Red Scare. This is a time when you have to worry about who overhears you in the hallway and whether you are a team player or not. At least that’s the expectation of how it will turn out.
As a professional, what are you preparing for in this space?
We’re talking to several groups created to defend where the second Trump administration crosses the line. I do so informally in the sense that I am compiling a list of lawyers, accountants, psychologists, and psychiatrists who are willing to provide free representation to targeted people. I also continue to work with the non-profit organization Whistleblower Aid. We provide free legal representation to whistleblowers in the private and public sectors and have been doing so for nearly 10 years. I really want to emphasize that this is more about addressing violations of established norms and policies and subversion of the rule of law rather than creating an organization to combat the Trump administration. I am non-partisan, regardless of what the MAGA people think or what (Rep. Alexandria Ocasio-Cortez) supporters think.
What would retaliation look like?
The layoffs are expected to have many ramifications within the administration. It could be a more aggressive prosecution, but I don’t expect it to go that far. You may have trumped-up charges, pun intended, etc. Or some people are taken away for interrogation in the middle of the night. Can we go there? It’s a slippery slope.
Forty years ago, when I was in college, I wrote a thesis on Germany, and I never understood how such a civilized cultural environment changed so quickly in the 1930s and 1940s. I didn’t understand it until I saw the MAGA movement.
