Warning to Whistleblowers: “We Are Back in the Days of the Red Scare”

Tyler Comrie

Government employees who report possible malfeasance are almost certain to be targeted by the second Trump administration. Mark Zaid is a lawyer likely to represent some of them; over the past two decades, he has provided legal counsel to a long list of federal employees and intelligence officers, including whistleblowers.

His most high-profile whistleblower case, however, was that of the intelligence officer who reported to an inspector general that then-President Donald Trump pressed Ukrainian President Volodymyr Zelenskyy to find political dirt on his presidential rival. While dangling military aid to Ukraine that Congress already had approved, Trump asked Zelenskyy to investigate the family of Joe Biden, a leading Democratic contender to face Trump in 2020. This whistleblower’s 2019 report led to Trump’s first impeachment case.

The case of that whistleblower—whose identity Zaid has never revealed publicly—was far from the first time a concerned citizen came forward with potentially damaging information about the government: In 2002, FBI special agent Coleen Rowley wrote a letter to then-FBI Director Robert Mueller alleging that the agency failed to properly investigate a terrorist later found to be connected to the September 11 attacks. Another whistleblower was military police officer Joseph Darby, who informed the Army Criminal Investigation Division of pictures showing US military personnel torturing inmates at Iraq’s Abu Ghraib prison in 2004.

These two early-2000s whistleblowers followed the proper channels by reporting their allegations to the relevant authorities. They were granted some professional and physical safety protections in exchange but still faced personal hardships. Future whistleblowers are likely to face far worse.

This interview has been edited for length and clarity.

What has changed about whistleblowing since the first Trump administration?

The Ukraine intelligence community whistleblower case was just like countless other cases that I had handled over the decades prior: A whistleblower came forward with reasonable concerns and handled the matter lawfully and properly within set procedures, and then we helped navigate that individual through the process to ensure that they were fully protected. What made that case so different was that it involved the president of the United States and that the president and his allies made it personal and ignored the norms and standards that were otherwise believed to exist.

Is the risk of retribution even higher in Trump’s second term?

The real discomfort is that the Supreme Court decision from the January 6 prosecution has effectively given him near or full immunity for any presidential- type action. So if he strips us of our security clearances, he’s protected. If he instructs his agencies not to take seriously anything that we as lawyers might do for our clients and retaliates against our clients, he’s protected. If he orders an IRS audit of those whistleblowers or his critics to see what falls out, he’s protected. It is such a broad mandate that he could hypothetically shoot someone on Fifth Avenue and potentially be legally protected if he does that as part of his presidential duties.

Is there any recourse for people who are targeted?

Suppose, on his first day of office, the president says: “Here’s a list of 150 individuals who I believe worked against me, and therefore, they are a threat to the national security of the United States. Their clearances are hereby revoked.” That is the end of the road. There’s no ability to legally challenge that in a viable way. The real defense for many federal employees or critics is going to be time and transparency. There may be some legal actions that we can bring if he issues his executive order about eliminating civil service protections. There will be lawsuits, and we may prevail in one or more. But it will probably be in the next administration, because four years is not a lot of time to litigate claims…I have had cases where Congress stepped in against the executive branch in national security cases to protect whistleblowers. But for that to happen, all the stars have to align, and it’s got to be the party in the majority, not the minority.

Who do you think Trump will target?

Presumably, those who will be prioritized are the ones who he most frequently rails against: General Mark Milley or special prosecutor Jack Smith. Strangely enough, nobody’s ever heard Jack Smith say anything. But every filing has his name on it, so he gets targeted. I’m not very concerned about anyone who engaged in activities as a member of Congress, whether past or present, because I have my doubts that—other than a small number of extremist MAGA devotees— Republican members of Congress would support it.

And journalists could be implicated, too, right? 

I fully expect it. There is no journalistic privilege when it comes to classified information, or what we call national defense information in the Espionage Act; disclosure of it, dissemination, printing, or publishing that information puts any journalist and their media outlet on the chopping block for prosecution. The only thing that has stopped that from occurring over the course of a century has been public policy, practice, and norms—none of which will presumably exist in the second Trump administration. I can easily see, in an effort to prosecute those who caused a leak, that journalists’ phones are tapped, that journalists are surveilled physically, that their emails are confiscated—all done through judicially issued warrants.

What protections is a whistleblower supposed to have?

If they go through the inspector general’s office, their identity is to be protected. My colleague took the Ukraine whistleblower to the inspector general’s office and formally filed a protected disclosure that legally guaranteed the inspector general was not allowed to reveal the identity of the individual. During the impeachment trial in the Senate, Sen. Rand Paul (R-Ky.) submitted questions that had the name of an individual who he believed was the whistleblower, and they were the only questions that the chief justice refused to read aloud and discarded. There was nothing legally requiring him to do that, but it was a recognition by the chief justice of the need to protect the identities of whistleblowers, especially when they pursue their pathway through proper and lawful channels.

We learned later that the White House was intentionally leaking the name of who they believed the whistleblower was through numerous media outlets. And the media outlets, to their credit, refused to publish it. But the White House knew who the whistleblower was, and they absolutely were pushing the name. Even then, they were at least doing it behind the scenes quietly, and the system still worked. In a second Trump administration, I have little doubt that Donald Trump, at the podium among others in his administration, would simply say the name.

That’s a great segue to my next question, which is, what could happen to someone if they were identified as a whistleblower, rightly or wrongly?

Obviously, they could be subject to administrative repercussions. But of greater concern are the physical threats of violence and harassment from nongovernmental personnel who believe they would be vindicating and supporting the president of the United States by taking action against a perceived traitor.

I had armed protection for two months, bodyguards who were living with me 24/7, because of death threats as the lawyer for the whistleblower. And I knew whenever the threats would increase what had happened, and it was usually people like Rush Limbaugh, [Sean] Hannity, Laura Ingraham, or [Tucker] Carlson saying my name.

Have people started getting on your books as a preventative measure?

I wouldn’t say a large number, but certainly, there have been individuals who work within the federal government who have contacted me in anticipation of prospective retaliation.

What else can concerned government employees do?  

Don’t do anything on your government computers or government phones. You have to be careful about printing anything on government computers. You have to be careful who you talk to. We literally are back in the days of the Red Scare, where you have to be concerned about who overhears you in the hallway, as to whether you’re a team player or not. That at least is the anticipation of what it might become like.

As an expert, what are you doing in this space to prepare?

There are several groups that I am in conversation with who were created for the purpose of defending against where the second Trump administration crosses the line. I’m doing so informally, in the sense of compiling a list of lawyers, accountants, psychologists, and psychiatrists who are willing to provide pro bono representation to those who are targeted. I’m also still doing work with my nonprofit, Whistleblower Aid. We provide free legal representation to whistleblowers, both in the private and public sectors, and have been doing so for nearly a decade. 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 entities to combat the Trump administration. I’m not a partisan—regardless of what the MAGA folks think or the [Rep. Alexandria Ocasio-Cortez] supporters think.

What will retribution look like?

I expect a lot of the repercussions inside the administration to be employment terminations. It could be more aggressive prosecutions, but I am not going so far as to expect that. You may have, pun intended, trumped-up charges and things like that. Or people in the dead of night taken to be interrogated. Can we get there? It is a slippery slope. 

When I was in college 40-plus years ago, I did a paper on Germany, and I never understood how such a civilized cultural environment fell so quickly into what the 1930s and ’40s became. I didn’t understand that until I watched the MAGA movement.