The Relevant in the Room

#14--Of course it matters who the Whistleblower is.

Mark Zaid, lawyer for the whistleblower (WB) who set off the whole Trump-Zelensky investigation, tells us “the identity of the whistleblower is irrelevant.”
The WB’s central allegation about the Zelensky call has been corroborated by the “transcript” of what was said on the call, after all. No need to learn anymore about the whisteblower! His job is done and he should be allowed to remain anonymous, says Zaid.

But the WB’s ID seems highly relevant. We may now know what was said on the phone call, but we still need to decide what to make of it. Was it just unsavory or — at the other end of the scale— bad enough to justify removing a president? In part, that involves asking: Why was it such a big deal to so many foreign policy professionals filling the Trump administration? In answering that question, it matters if the fuss was initiated by, say, an official who was supportive of Trump, and shared his Ukraine skepticism, but was nevertheless horrified by Trump's "ask.” That’d be powerful evidence that Trump might have really screwed up.

But what if the WB is a vehement Ukraine hawk, with strong ties to Joe Biden and Democrats? Let's just say -- hypothetically! -- it's the latter. The point wouldn’t be that the whole thing then smells like a long-hatched anti-Trump conspiracy (though it does). The Lewinsky scandal was a long-hatched anti-Clinton conspiracy. Didn't bother me then. Sometimes conspiracies catch guilty people.

The point is that seemingly everyone in the WB’s network of outrage,, from the person who told the WB about the call to Col. Vindman (the National Security Council Ukraine expert who’s testified before Rep. Schiff’s impeachment panel) to Ambassador William Taylor (who’d written a text calling it “crazy” to hold-up aid to Ukraine “for help in a political campaign”) to the aide in Schiff’s office consulted by the WB may be sincerely, passionately inflating the importance of Trump's sin--and deflating Biden's-- because to them aiding Ukraine is wildly important and Joe Biden is a compatriot, mentor or hero.

Voters and the senators— who will have to determine whether Trump's tactics were a "high crime”— may have a less fraught perspective and discount the offense accordingly. That would be harder to do if the prime accusers weren't all vehement anti-Russia Ukrainiacs.

We’re constantly told that impeachment—and the subsequent Senate verdict —is a political judgment, not a criminal adjudication. You don’t have to have committed a crime to be convicted. The rules of evidence do not strictly apply.  The House and Senate can take basically anything into account that they want -- including guilt by association, or in this case not-so-guilt by association.**

It's also true that there are more facts in the case than the phone call transcript. This isn't like a drug deal where an undercover informant can drop a dime and then disappear while the perp is tried. We know the drug deal was a drug deal. We don't know what kind of a deal this was. What was Trump's intent? Was he interested in actual corruption, or was that a fake concern? How did the Ukrainians interpret it -- as a serious threat to the aid or just a classic Trump feint to be abandoned relatively quickly if resisted? What was the meaning of the demand for a press conference — was the idea to lock Zelensky into the investigation or to give Trump some cheap oppo optics?  Did any of the pro-Ukraine Trump administration conspirators express any doubts about their outrage?

A CIA analyst immersed in the Ukraine policy community (as the whistleblower was, according to the NY Times) would almost certainly have evidence to add on these issues --as much as the celebrated ex-Ambassador Yovanovitch. And in assessing that evidence, it would help to see the witness’ demeanor (that’s one of the reasons the Constitution has a clause allowing accused at criminal trials to confront witnesses against them).

No way the WB’s testimony wouldn’t help.

So why am I hesitant to demand his/her unmasking? Because I think Zaid’s point about the WB’s fears of physical retribution aren't crazy . Neither would be the fears of anyone involved else in impeachment, on both sides -- but the whistleblower is more salient and cathected. True, he's not protected by the terms of the whistleblower statute (which apparently applies only to inspector generals, and even then allows revealing WB identities if it's "unavoidable"). But there's clearly a good reason to try to protect whistleblowers even when the statute doesn't apply.

An obvious compromise is to offer him or her Salman Rushdie-level protection for as long as necessary once his anonymity has ended. If his lawyers told him he could start a presidential impeachment and then fade quietly back into the woodwork, they gave him very bad advice — for starters because of that "unavoidable" exception, but also because the universe of possible WB candidates in this case is small and the public's curiosity very high.

I'm not completely comfortable with that. Another possible compromise might be to question the WB, as just another named witness, without revealing that he or she is in fact the WB. You’d get some information, but the public wouldn’t be able to judge the conspirators’ lack (or non-lack) of perspective on Ukraine. Or maybe both sides could agree on a public description of the WB’s views on Ukraine and political contacts that would give voters the basic gist of his loyalties and biases—but without explicitly identifying him or her.

Otherwise, we’re back at Salman Rushdie. You have a better compromise?

** Guilt by association seems an underrated evidentiary tool! Did it tell Democrats something about highly qualified judicial candidate Miguel Estrada when they learned he was friends with Ann Coulter? You bet. You wouldn't convict anyone of a crime based on that sort of evidence, but you could make a reasonable guess about his future judicial biases. (He could always explain!)