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Anonymous Accusations Invite Political Perils

Nothing can be more obvious than that the purpose of the whistleblower statute is to indemnify whistleblowers—that is, to provide legal protections to assure they cannot be punished for coming forward.


- November 9th, 2019
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An ancient truth that suffers in the hands of the maleficent and the ignorant is the caution against anonymous accusations.

When accusers “are unwilling to trust the laws between them and the accused, that is a proof that they have reason to fear the laws. And the least penalty that one should inflict on them is not to believe them.”

Such was the observation made in the 18th century by the French philosopher Montesquieu, in a discussion of the “most important thing in this world” that people need to know, which is the forms of criminal justice. He emphasized the point in his later declaration that “the surest rules that one might apply in criminal judgments concern the human race more than anything there might be in the world.”

Montesquieu’s extensive discussion of the dangers to political liberty that derive from criminal judgments canvassed issues as diverse as the illegitimacy of “thought crimes,” the need to be especially careful about charges of “treason,” and the inadmissibility of “anonymous accusations.” Concerning the latter, the philosopher argued that anonymous accusations prove that the accusers have “reason to fear the laws.” Therefore “we would not know how to suspect the person” whose accuser will not stand forth and point a finger at him.

This ancient observation runs right to the heart of the great mystery that otherwise intelligent observers and officeholders are now widely disseminating the false interpretation that so-called “whistleblower laws” provide anonymity for government accusers. It is obvious that if any individual could command a public hearing for anonymous accusations with no more than a plausible pretext to be believed, such a legal regime would create wide-scale public chaos. Nevertheless, news reporters with no discernible bias against the Trump Administration have widely repeated the partisan claim that there is a legal guarantee of anonymity for the whistleblower. In one case, a Fox News reporter even seemed to be indignant that anyone might doubt the certainty of that interpretation.

Nothing can be more obvious, however, than that the purpose of the whistleblower statute is to indemnify whistleblowers—that is, to provide legal protections to assure they cannot be punished for coming forward. In other words, the whistleblower statute is based on the expectation that the accusers will not hide behind anonymity precisely because of having the protection of the law.

An accuser who will not come forward may plausibly be judged to believe that he or she cannot come forward without compromising himself in relation to the criminal law.

That is the situation that now exists in Washington, D.C., a political fortress built around an anonymous accuser in order to create a basis to punish someone—namely the president. This is a course that historically has been the harbinger of legal and political breakdown of the sort that undercuts public reliance on legal processes and guarantees and therefore justifies extraordinary undertakings in the pursuit of political objectives or even mere acts of revenge. The purpose of forbidding anonymous accusations is to avoid justifying such retributions. Some ancient truths would serve us well in this perilous hour.

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