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White House Could Exploit ‘Loophole’ to Oust Lt. Col. Vindman


Update, 4 p.m.: Vindman was removed from the National Security Council.

According to reports that will surprise no one, the White House is planning to dismiss Lt. Col. Alexander Vindman from the National Security Council (NSC). According to the administration, the move isn’t about retaliating against Vindman for his testimony during the impeachment proceedings against Donald Trump, but rather, about general NSC staff downsizing.

Vindman expects that his departure may be as soon as this month, despite the fact that he was was appointed to a two-year position in his post, beginning in July 2018, per CNN. Vindman’s lawyer noted this in Nov. 2019 when winds of change first blew.

Months ago, Vindman, a Purple Heart recipient, testified before Congress about Trump’s July 25 phone call with Ukraine president Volodymyr Zelensky.

Under federal law, retaliation against any officer or employee of any intelligence agency is illegal, and an allegation of retaliation triggers an external review by a panel of the Inspector General. So, would the White House be breaking the law by dropping Vindman from the NSC?

Well, as some have already opined, that all depends on the strength of the White House’s spin game.

To stay within the confines of the law, the administration would need to show that either 1) Vindman’s reassignment isn’t really a “retaliation” under the law; or that 2) PPD-19, the specific rule prohibiting this kind of retaliation, does not cover Vindman.

National security lawyer Bradley P. Moss told Law&Crime that “A ‘reassignment’ would ordinarily qualify as a retaliatory action in this context, and it is axiomatic this is retaliation according to the spirit, if not the letter, of the law.”

“There is a potential loophole the White House could exploit,” Moss said, however. The administration could argue that “testifying to Congress does not meet the strict requirements of PPD-19 and its implementing regulations. It’s anyone’s guess how that would shake out.”

PPD-19 is specifically focused on protecting those who report waste, fraud, and abuse–which is potentially distinct from Vindman’s testifying at the request of Congress. Whether PPD-19 would still provide some level of protection to Vindman remains to be seen, but lawyers directly involved believe it likely would.

Moss’s colleague Mark Zaid is one of the lawyers who has represented the Ukraine whistleblower. Moss was not involved in that case, but still received death threats.

Zaid saw the latest news about Vindman, though, and felt the need resurface a tweet from last November.

[image via Alex Wong/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos