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Whistleblower Case Exposes Gaps in Federal Protections

By Shanna Devine

A whistleblower’s disclosure that President Donald Trump abused his power to “solicit interference from a foreign country in the 2020 U.S. election,” has gripped the nation and prompted the U.S. House of Representatives to open an impeachment inquiry. As Trump uses the age-old tactic of shifting the spotlight from the wrongdoer to the messenger, Congress must send an unequivocal message that it will protect our most dedicated civil servants and strengthen federal whistleblower laws.

Despite their immense courage, most whistleblowers feel “I was just doing my job” and speak out due to a “higher loyalty” to the institutional mission, the new book Crisis of Conscience explains. Regardless of motive, throughout history whistleblowers have been Congress’ best defense against waste, fraud, abuse and other illegality. That is why, during a period of growing political polarization, congressional support for whistleblowers continues to transcend party lines.

Thirty years ago, Congress enacted the Whistleblower Protection Act – the nation’s leading whistleblower law for federal employees outside of the intelligence community (IC) – and in 2012, it unanimously strengthened those rights. That same year, President Barack Obama issued Presidential Policy Directive-19, which established, for the first time, protections for IC whistleblowers who blow the whistle internally (Congress made them law in 2014). However, the rights are weak and anyone who tries to enforce them risks professional suicide – as we are now witnessing. This is why so many whistleblowers choose to remain anonymous.

Federal employees outside of the IC have rights against retaliation if they make a disclosure directly to Congress (among other protected audiences). This presumably includes the whistleblower who reported “evidence of possible misconduct” and “inappropriate efforts” to influence an audit of Trump’s tax returns. Conversely, a whistleblower within the IC may only disclose to Congress through internal channels to qualify for protection. If the Inspector General finds the disclosure to be of an “urgent concern and credible,” as IC Inspector General Michael Atkinson did in the whistleblower’s case now in the news, under the law the Director of National Intelligence (DNI) “shall” share the disclosure with the congressional intelligence committees.

In response to Acting DNI Joseph Maguire’s decision to initially withhold the whistleblower complaint from Congress, both chambers unanimously passed resolutions for the complaint to be transmitted immediately to the intelligence committees.

Yet, during a hearing before the U.S. House Permanent Select Committee on Intelligence, Maguire acknowledged, “I think the whistleblower did the right thing. […] I think he followed the law every step of the way.” When pressed by Chairman Adam Schiff (D-Calif.), Maguire committed to protect the whistleblower. Potential whistleblowers will be watching closely to see if he follows through on his word and whether Congress protects its witnesses.

The primary reasons would-be whistleblowers don’t come forward are the fear that they won’t have an impact and the fear of retaliation.

Trump’s attacks have ranged from calling the whistleblower “highly partisan” to “trying to find out” about the whistleblower’s identity, despite the right to anonymity. He has also threatened the supporting whistleblowers, likening them to spies and tweeting “Big Consequences!” Most recently he tried to obfuscate the facts around the rules governing whistleblower complaints. There even have been reports of a $50,000 bounty for information about the whistleblower’s identify. In response to the litany of assaults, the whistleblower’s counsel sent a letter to Maguire regarding “serious concerns we have regarding our client’s personal safety.”

U.S. Sen. Chuck Grassley (R-Iowa), co-chair of the Senate Whistleblower Protection Caucus, echoed calls for the whistleblower’s protection and asserted, “Uninformed speculation wielded by politicians or media commentators as a partisan weapon is counterproductive and doesn’t serve the country.”

Despite rebukes to Trump’s treatment toward the whistleblower – including from within his own party – his actions are bound to have a chilling effect throughout government. In response, Ranking Member Gary Peters (D-Mich.) of the U.S. Senate Homeland Security and Governmental Affairs Committee asked the Office of Special Counsel – the government agency that handles federal whistleblower disclosures – to issue guidance on actions agencies can take to protect whistleblowers and investigate their disclosures.

Our elected leaders will need to engage in robust damage control to restore trust in the whistleblower process. If Congress wants to sustain the flow of evidence, it must prioritize the protection of the whistleblowers whose disclosures have been thrust into the spotlight. It also has a responsibility to strengthen federal whistleblower rights, as the latest events have underscored longstanding gaps. For starters, IC whistleblowers should be able to disclose directly to authorized congressional committees. Furthermore, federal whistleblowers need protections against retaliatory investigations and access to a jury to challenge retaliation. Anything less would be a disservice to our most courageous civil servants.

Join the Make It Safe Coalition’s open letter to Congress in support of these reforms!