Criticize a whistleblower, go to Ethics jail? Adam Schiff didn’t get quite that explicit in his memo today outlining the rules of the impeachment inquiry hearings, but that certainly seems to be the subtext. Schiff instructed House Intelligence panel members that they’d better not “facilitate any efforts by President Trump or his allies to threaten, intimidate, or retaliate against the whistleblower who courageously and lawfully raised concerns about the
President’s conduct.”

Those who do will find themselves referred to the House Ethics Committee:

Whistleblower started Trump-Ukraine matter, framed issue in way House Dems have adopted for impeachment. Now Chairman Schiff orders GOP: Do not talk about whistleblower in impeachment hearings. If you do, you'll hear from Ethics Committee. https://t.co/SPVajnNhlp pic.twitter.com/ZKcITQDjIb

— Byron York (@ByronYork) November 12, 2019

There’s more objectionable proscriptions in that first paragraph, but let’s start there. In the first place, there is no law prohibiting the disclosure of the identity of a whistleblower who becomes part of an investigation, especially as the investigation proceeds to judicial activity. Recall that House Democrats have repeatedly represented their impeachment inquiries as quasi-judicial proceedings in order to get courts to enforce their subpoenas for Trump’s tax records and other documentation. It may not be a good practice to do so, but it’s not against the law, and it certainly doesn’t amount to an abuse of power when members of Congress use that to question the legitimacy of its own proceedings.

Furthermore, Shiff’s warning is unconscionably vague on what constitutes “threaten, intimidate, or retaliate.” Does criticism count as “intimidation”? Are these “Daily Northwestern” rules? Schiff and his allies have tried making that argument publicly, claiming that any question about the timing of contacts between the whistleblower and Schiff’s staff are illegitimate attempts to silence someone Schiff doesn’t plan to call anyway. It might not be an explicit demand not to discuss the whistleblower or his complaint, but it’s tough to read this as anything else.

This is equally curious for a committee that’s supposedly looking at getting to the truth:

As explained in my November 9, 2019, response to the Ranking Member, it is important to underscore that the House’s impeachment inquiry, and the Committee, will not serve as venues for any Member to further the same sham investigations into the Bidens or into debunked conspiracies about 2016 U.S. election interference that President Trump pressed Ukraine to undertake for his personal political benefit.

In an adversarial process — which Schiff has clearly set in motion — having alternate theories explored is a legitimate part. Even if Schiff’s claim is true that these are “shams” and “debunked,” why not make that case in the inquiry? Schiff is trying to foreclose the positive defense of Trump’s actions that there really was a corrupt conflict of interest with Hunter Biden’s position at Burisma, which … is not difficult to believe when the State Department itself worried about it during the Obama administration.

Threatening an Ethics Committee referral over legitimate questions makes this inquiry look like a kangaroo court. This memo will act as a big red cape to Republicans on the committee for that reason. The more imperious Schiff gets in shutting down such questions and threatening Republicans in this inquiry, the more cooked his probe will appear.