WASHINGTON (CN) — Republican lawmakers edged ever closer to the line of outing a whistleblower within the Senate chamber on Thursday, inspiring a rare rebuke from Supreme Court Chief Justice John Roberts.
Whether Congress members violate federal whistleblower protections by outing one — in or out of session — has been a previously obscure legal controversy, thrust into the national debate by a senator bent on testing it.
The offending question came from Senator Rand Paul, who included the alleged identity of the official whose confidential complaint set in motion a cascade of events that made President Donald Trump the third impeached commander-in-chief in U.S. history.
After Chief Justice Roberts declined to read Paul’s question aloud after several seconds of silent rumination, the Kentucky Republican stood up and exited the chamber.
The chief justice did not censure Senator Paul verbally, but his silence spoke volumes. It was the first time in two weeks of the impeachment trial that Roberts barred a senator or attorney from making a statement.
In a tweet, Kentucky Republican confirmed his attempt to blow the whistleblower’s cover.
“My question today is about whether or not individuals who were holdovers from the Obama National Security Council and Democrat partisans conspired with Schiff staffers to plot impeaching the President before there were formal House impeachment proceedings,” Paul wrote.
If a Republican senator succeeded in identifying the alleged whistleblower, Democrats already have raised the possibility of seeking sanctions.
“I think a disclosure of a whistleblower would contain legal issues,” Senator Richard Blumenthal, D-Conn., told Courthouse News on Wednesday.
“On the floor of the Senate, there would be some degree of immunity,” Blumenthal acknowledged. “Certainly under our ethics rules, there will be potential consequences, and I would ask the chief justice to immediately intervene and perhaps apply sanctions. It would be unprecedented.”
Bradley Moss, a Washington-based national security attorney, told Courthouse News on Thursday he thought the maneuver by Senator Paul was altogether unseemly.
“There is no legitimate reason why any senator should be trying to smear, let alone potentially expose, a federally protected whistleblower,” Moss said. “The senator’s actions today were beneath the dignity of his office.”
John Tye, a former State Department official who worked on matters related to internet freedom from 2011 to 2014, blew the whistle on the department’s Bureau of Democracy, Human Rights and Labor, citing concerns about Fourth Amendment violations occurring in light of the government’s electronic surveillance practices.
Tye, now CEO of Whistleblower Aid, a nonprofit organization that connects whistleblowers with attorneys, described the move by Paul as reckless and intended to “distract and intimidate, not educate.”
The whistleblower’s complaint has been fully verified, Tye noted, including by the Trump administration itself.
“Ongoing attacks on whistleblowers and whistleblower protections risk creating a chilling effect that will undermine government oversight and our system of checks and balances,” Tye said.
Before the impeachment trial began, legal observers largely expected Chief Justice Roberts to take a subdued role over the proceedings, preserving the Supreme Court’s reputation from the political fray.
“The chief justice in terms of actual decisional authority is a potted plant,” University of Missouri law professor Frank Bowman, the author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump,” told Courthouse News before trial began.
For roughly two weeks, the chief justice lived up to that expectation, briefly chastising both House Democrats and White House lawyers on tone, never on substance.
On Thursday, Roberts was tested by both parties.
On the Republican side, Wisconsin Senator Ron Johnson followed up Paul’s attempt to expose the alleged whistleblower with a more modest attempt to put key details about that official’s identity into the Senate’s record.
Roberts’ favorable ruling for the Democrats won him little good will from Massachusetts Senator Elizabeth Warren, who asked the chief justice whether the structure of the trial threatened his legitimacy to the public.
“At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court, and the Constitution?” Warren asked.
Senate trial protocols mandated that the chief justice himself read the question, casting doubt on his own democratic legitimacy.
As he finished reciting Warren’s question, Roberts slumped in his podium, looking sullen, as lead House impeachment manager Adam Schiff diplomatically attempted to put out the flames ignited by one of his party’s leading presidential candidates.
“I would not say that it contributes to a loss of confidence in the chief justice, I think he’s presided admirably,” Schiff said.
Before Warren’s rhetorical grenade — which drew laughter from Democrats while Republicans sat largely stone faced — it was predominantly Senate Republicans who seemingly reveled in pushing the envelope during the impeachment trial.
For Republican Senators like Ted Cruz of Texas, Lindsey Graham of South Carolina and Josh Hawley of Missouri, the impeachment trial provided an opportunity to attack former vice president Joe Biden for his son Hunter’s ties to Burisma.
Democrats have called this an irrelevant distraction meant to accomplish what Trump could not in his Ukrainian scheme.
The lawmakers claimed House managers, specifically, Florida Representative Val Demings, refused to answer a question Wednesday on how to resolve those conflicting statements and whether Congress had sought to investigate that conflict.
Demings responded Thursday by saying that some conversations, like those between a father and son, couldn’t be repeated on the Senate floor and that she did not know why the Bidens gave conflicting accounts.
What Demings said she could tell lawmakers, however, was that the issue at hand, impeachment, underscores the necessity for truth.
“Looking at the Bidens, no matter how many times we call their name, we have no evidence to point to the fact that either Biden has anything at all to tell us about the president shaking down a foreign power to help him cheat in the next election,” Demings said. “I don’t believe either Biden has any information about that, but let me tell you who I think does, maybe we should call Ambassador [John] Bolton.”
Pam Bondi, a member of the president’s defense team and former Florida attorney general, listed a slew of issues defense attorneys had with Biden and his son Hunter related to their involvement in Ukraine.
Those suspicions include naming the monthly salary given to Hunter during his time on the board, and the amount of times Hunter attended Burisma board meetings.
“Senators, you heard our answer regarding that yesterday, but it is very interesting that he said he never spoke to his son about overseas dealings, his son said different things,” Bondi said, towing a ubiquitous line from the White House. “But the vice president, by his account, never once asked his son to leave the board. We wouldn’t be sitting here if he did.”
Given the deep discordance between cases presented by the White House and impeachment managers, it can often feel as if lawmakers are squeezing themselves through the looking glass, and often not by their own choice.
Representative Adam Schiff, the lead impeachment manager, walked right through it Thursday when fielding a question on Trump’s obstruction of Congress.
Speaking from the Senate floor, Schiff described a hearing that occurred today just a mile away — in a federal courthouse that is so close it is visible from the third floor of the Capitol — where members of the House Oversight Committee pushed to secure records on the firing of former Deputy FBI Director Andrew McCabe.
When U.S. District Judge Randolph Moss asked how the House could enforce its subpoena for the records, Justice Department attorney James Burnham said the House’s only recourse was to utilize its powers of impeachment.
“Oh my God,” exclaimed Senator Kirsten Gillibrand, D-N.Y., at Schiff’s account, voicing disbelief that Burnham’s argument undercuts the one that White House defense counselors have presented for the last week.
“You can’t make this stuff up,” Schiff said, drawing roars of laughter from Democrats in the chamber.
Reactions like Gillibrand’s were in fashion Thursday as Democrat and Republican lawmakers alike generally appeared more restless following the back-to-back trial days, late nights and intense focus on the calling of witnesses.
Notably, Trump stalwart Senator Lindsey Graham was often missing from the chamber Thursday, disappearing during a series of three questions posed to impeachment managers.
Democratic members were heard booing in response to a comment from White House attorney Jay Sekulow that the impeachment inquiry process was baseless and that the House lacked the proper authority to begin the investigation.
As the back and forth continued, White House defense insisted the calling of witnesses or production of new evidence would take until the November 2020 election to complete.
Asking for just one more week, Schiff emphasized the request was reasonable.
“We can get the business of the country done,” Schiff pleaded. “Is that too much to ask in the name of fairness? Are we really driven by the timing of the State of the Union? Can’t we take one week? I think we can. I think we should. I think we must.”