Jurisprudence

An Interview With the Whistleblower’s Lawyers

Mark Zaid and Chuck McCullough.
Mark Zaid and Chuck McCullough, two of the whistleblower’s lawyers.
Photo illustration by Slate. Photos by Mark Wilson/Getty Images and Alex Wong/Getty Images.

It’s been a week. But here we are. On Tuesday, Democrats in the House of Representatives announced that they intend to launch a formal impeachment inquiry into President Donald Trump to investigate communications between the president and Volodymyr Zelensky, the new Ukrainian president. The potential inappropriateness of these communications was first flagged in August, by a whistleblower who, in the course of his job, was made privy to several details of the interaction that alarmed him and other witnesses in the White House and intelligence community. On Wednesday, the White House released a memo representing a readout of one of the telephone calls in question, in which the president encouraged Zelensky to look into a debunked corruption theory that could produce dirt on Joe Biden, Trump’s possible Democratic rival in the 2020 presidential contest. On Thursday, the whistleblower’s formal complaint was declassified and released to the general public.

On Thursday afternoon, the New York Times reported some of the first information on the (still anonymous) whistleblower, including that he works for the CIA and was privy to this information because he was detailed to work in the White House for a period of time. As the Times noted, “Little else is known about him. His complaint made public Thursday suggested he was an analyst by training and made clear he was steeped in details of American foreign policy toward Europe, demonstrating a sophisticated understanding of Ukrainian politics and at least some knowledge of the law.” One of the complexities of this moment is that journalism both surfaced the whistleblower’s complaint and now threatens to expose his identity.

On Wednesday night, I spoke with three of the whistleblower’s lawyers, Andrew Bakaj, Mark Zaid, and Chuck McCullough. Bakaj is a former CIA officer who served as a senior investigator with the Department of Defense’s Office of Inspector General. He is a founding and managing partner of Compass Rose Legal Group PLLC, his current firm, and was a whistleblower himself. Zaid, another prominent national security attorney, joined the team over the weekend. McCullough is a former intel community inspector general and is also representing the whistleblower. The lawyers are working in conjunction with Whistleblower Aid, a nonprofit that exists to support and assist whistleblowers. John Napier Tye, the founder and CEO of Whistleblower Aid, was also on the call.

The lawyers were constrained in what they were willing to say. Their comments have been edited and condensed for clarity.

On When They Started Working for Their Client:

Bakaj: I think it’s important for everybody to understand that I have been this individual’s attorney from the very beginning. In fact, I have been involved in this matter from before the disclosure was made. That’s important, because it underscores the fact that this individual sought out the advice of counsel, to make sure that the disclosure is made lawfully, through established legal processes and regulations, and in compliance with the statute that everybody’s discussing. … We have followed the law from the beginning, and we intend to continue following the law.

On How It’s Gone So Far:

Zaid: Our objective through this process has been to ensure that the substance of the complaint was brought to the attention of the appropriate oversight authorities, so that they can complete their responsibilities, both within the legislative and the executive branches. And the process, so far, has worked. That does not mean there were no roadblocks, or walls, that we encountered along the way, but everything has indicated, and I think the facts will show, in the days to come, maybe even in the hours to come, that nearly all, if not, every, impediment has been dismantled, to demonstrate the process has worked.

On Anonymity:

Tye: Almost every whistleblower case has two parts, the disclosure and then reprisal issues. The whistleblower has a legal right to maintain their anonymity, and I know the legal team is committed to preserving that legal right. Obviously, that is still an open question, whether that will happen, because there’s so much interest in this case, and so many reporters digging in. Our number one priority with Whistleblower Aid is to protect the client’s interests, and, specifically, their right to remain anonymous, and more broadly, obviously, the right not to be retaliated against.

We have these whistleblower laws for a reason. It is very scary to report lawbreaking by senior officials. It’s very scary to have the president of the United States tweeting about you, and generating an intense amount of interest, potentially threats, and harassment, which I think we’re all familiar with.

On the Difference Between Whistleblowing and Leaking:

McCullough: The difference between being a whistleblower and being a leaker is following the process. That’s when you get in trouble in the intel community. It’s a little bit different than working at Health and Human Services, or other places, although they have rules, also. But it’s a little different when you’re dealing with classified information.

This particular whistleblower is intensely vulnerable to reprisal, even though he’s gone the right way. What he’s done is, he’s classified himself as a whistleblower, not a leaker, but if he’s still vulnerable to retaliation, for what he’s done, now, because he went the right way, he’s got protection. There’ll be accountability. If somebody tries to reprise, you get to retaliate, and Congress can step in.

Advice for Other Whistleblowers:

Tye: The only real advice I can give is: talk to a lawyer first, before you do anything, before you print, or forward, any emails. Before you take any evidence, before you talk to the journalists, because every case is different. It’s very complicated, and we want people to protect themselves.*

Zaid: Yeah. Talk to an experienced lawyer, not just any lawyer.

Correction, Sept. 26, 2019: Due to an editing error, this article originally misattributed this quote to McCullough. It was made by Tye.