NWC Speaks on the Intelligence Whistleblower in the News
On August 12th, an anonymous whistleblower complaint regarding a telephone call with President Trump and a foreign official was filed with the Inspector General of the Intelligence Community who found a “credible concern” with the complaint.
National Whistleblower Center executive director, John Kostyack, and co-founders, David Colapinto and Stephen Kohn, have weighed in on the debate surrounding the intelligence whistleblower’s complaint as they spoke on the status of whistleblower protections in the United States and the future of whistleblowing across various news publications.
Read the interviews, articles, and news pieces where NWC features:
CNN, The Point with Chris Cillizza: “Expert debunks myths about Trump whistleblowers” from CNN on October 19, 2019.
The National Whistleblower Center’s Executive Director, John Kostyack, appeared on CNN’s The Point with Chris Cillizza this weekend to debunk some whistleblower myths and discuss the whistleblowing process.
FORTUNE Magazine: “The National Whistleblower Center’s Executive Director on Trump’s Reactions to the Ukraine Call Leak” from Terry Collins on October 10, 2019.
The House (of Representatives) needs to hear from the whistleblower, and their identity deserves the full protection by the laws afforded to them. The whistleblower is fully cooperating. The whistleblower has complied with the law, and that’s what the intelligence community has said.
The belief that some laws may have been violated or if the president may have abused his authority are reasons the whistleblower, both whistleblowers are protected. They are exercising their rights under the umbrella of protection. Both whistleblowers have skilled attorneys with sympathetic ears, and we’re cautiously optimistic their identities will be kept under wraps. We hope that continues.
That’s opposite a longstanding, centuries-old whistleblower law from the founding of this country. Whistleblowers are needed. An environment has to be created where they are not punished. Unfortunately, there’s a long history where whistleblowers have been punished, threatened, their families have been threatened. We always advocate for real strong consequences if their protections are violated.
Fortunately, we have a bipartisan consensus, including from (Iowa GOP) Sen. Chuck Grassley, one of the architects of the whistleblower law, that we want whistleblowers to step forward, be heard and protected.
The heart of a whistleblower is they can’t stand to sit silent and let the abuse of the law go by, to call out any laws that have been violated. And, after all they have been through, after all the trauma and backlash, they almost all say uniformly they will do again because they have a strong sense of right and wrong.
Whistleblowers are also entitled to their anonymity. They should not be subjected to any direct or implied threats, and there should not be calls to have their identities exposed. There’s this growing mainstream view, however, to expose them now and send a message to all whistleblowers to intimidate them.
He’s feeling under attack. It’s like shooting the messenger. The president and his allies are trying to shift the attention on the whistleblower’s credibility and personally attacking this individual.
It’s one thing if they were testifying at trial, but they are not. We are not in a trial situation. They are giving investigative leads to both Republicans and Democrats in Congress to follow up with. That’s what the whistleblower laws are set up for. If there were to be a trial, it would happen in the Senate and the House would decide which witnesses would testify. At that point, the president, who would be the defendant, would have the opportunity to confront his accusers. We’re not at that stage yet.
We are not to supposed to have the president and other senior officials threatening (the whistleblowers). It’s way too early to think they will be star witnesses. They have fulfilled their patriotic duties by providing evidence to investigators. This is not a case where the whistleblowers’ credibility will determine the president’s fate. His actions will.
BBC World News: GMT with Lucy Hockings on October 8, 2019.
National Whistleblower Center Executive Director, John Kostyack, spoke with BBC World News’ Lucy Hockings on GMT about the intelligence community whistleblower and what it takes to be a whistleblower with the protections that are currently in place.
Los Angeles Times: “Unpatriotic? Whistleblowers are ‘as American as apple pie’” from Laura King on October 8, 2019.
“To truly protect whistleblowers, there’s a lot of unfinished business,” said David Colapinto, general counsel for the National Whistleblower Center.
Newsday: “Trump attacks on whistleblower pose major test for protection laws” from Laura Figueroa Hernandez on October 6, 2019.
In 2014, Congress approved new whistleblower protection statutes for U.S. intelligence officials that were meant to bolster safeguards for those who come forward with allegations of government fraud and corruption. But those provisions never accounted for the possibility of the president being the subject of a whistleblower complaint, said David Colapinto, an attorney and co-founder of the National Whistleblower Center in Washington.
On Sunday, Mark Zaid, an attorney for the whistleblower whose complaint triggered the Trump impeachment inquiry, said via Twitter that a second whistleblower had come forward with “first hand” information to “support” the information reported by the first whistleblower. Zaid reiterated that second official “made a protected disclosure under the law and cannot be retaliated against.”
“This is the real first big test in the public eye of the whistleblower statute for the intelligence community,” said Colapinto, who has represented whistleblowers for more than 30 years. “The president is in charge of ensuring that whistleblowers are not retaliated against … now we have a situation where a president is saying that the confidentiality should be exposed. That goes against the president’s duty to uphold the law under the whistleblower statute.”
Colapinto said any officials who aid Trump in revealing the identity of the whistleblower could face criminal penalties and possibly fines for violating the protective statutes.
“These are not without potential ramifications, and the fact that there are congressional impeachment proceedings going on, the federal obstruction of justice statutes could apply,” said Colapinto. “Anyone who gets involved in the orders to release this person’s identity against the law could face even more serious ramifications” that includes “potentially facing criminal charges and may spend time in jail.”
Washington Post: “Mounting evidence buttresses claims in whistleblower complaint” from Rosalind S. Helderman on October 5, 2019
Part of the strength of the whistleblower complaint is that the document carefully flags when its author was sharing information provided by others, as well as instances in which the whistleblower was sharing his suspicions rather than what he knew to be true, said David Colapinto, co-founder of the National Whistleblower Center.
“I think whoever the whistleblower is understood the seriousness of the allegations, understood that it involved the White House, understood that it would get a lot of attention and prepared it carefully with that in mind,” he said.
For instance, the whistleblower wrote that he learned all U.S. security assistance to Ukraine was suspended in July. The Washington Post reported last month that the unusual directive to hold back the $400 million in money appropriated by Congress came from Trump himself.
The whistleblower wrote that the delay in the foreign aid”might have a connection with the overall effort to pressure the Ukrainian leadership.”
But, he added carefully, “I do not know definitively.”
But Colapinto noted that it is not the job of the whistleblower to investigate or prove his own complaint. Under the law, a whistleblower need only be able to show he had a “reasonable belief” that a violation of law or regulation took place to receive protections from retaliation.
He said that training material about the whistleblower law for members of the intelligence community specifically includes examples where employees are told of wrongdoing by their a colleague. Employees are told they should flag the wrongdoing in such instances so it can be properly investigated.
“That’s how this is supposed to work,” he said. “The rules are supposed to encourage reporting.”
RSI: USA: “Proteggete il whistleblower” from Emiliano Bos on October 4, 2019.
“Proteggere questo informatore è di fondamentale importanza”. Non ha dubbi David Colapinto, avvocato e cofondatore del Centro nazionale per i whistleblower di Washington.
Garantire sicurezza al funzionario governativo che ha fatto avviare l’indagine dei democratici al Congresso per l’impeachment di Trump – dice in questa intervista – non significa “schierarsi pro o contro Trump, ma schierarsi dalla parte della legge”.
PBS NewsHour: “Whistleblower protection, explained” from Candice Norwood on October 2, 2019.
Contrary to Trump’s claims, the law does not require a whistleblower to present first-hand information, it only requires a reasonable belief of a violation, said David Colapinto, co-founder and general counsel for the National Whistleblower Center, an advocacy group.
USA Today: “How does Congress hear from anonymous witnesses? Trump whistleblower seeks protection from retaliation” from Bart Jansen on October 2, 2019.
Whistleblower advocates said the people reporting alleged wrongdoing need to be protected from retaliation to avoid discouraging them from stepping forward.
“It’s a concern,” said John Kostyack, executive director of the National Whistleblower Center. “They would only do this hearing if the attorneys for the whistleblower believed that they had a reliable commitment on the part of everyone in the room to keep it confidential.”
CNN: “The Lead with Jake Tapper” from CNN on October 1, 2019.
NWC Executive Director, John Kostyack, spoke with CNN’s Jessica Schneider in a brief segment about whistleblower protection laws in the United States and how it relates to the Intelligence Community whistleblower on The Lead with Jake Tapper.
When asked if the President can demand to know the identity of the whistleblower, John Kostyack said:
No, we have strong protections of whistleblowers in this country developed over many years with a bipartisan consensus.
Further, in regards to the notion that second-hand information is not permitted under intelligence community whistleblower protections John stated:
Protect this whistleblower. This whistleblower complied with the law. First- and second-hand knowledge are both welcome.
Telemundo: “Trump quiere saber quién hizo la denuncia en su conta por la trama ucraniana. La ley se lo impide” from Maria Peña on September 30, 2019.
En la actualidad, las empresas privadas que se cotizan en la Bolsa han establecido procesos para tramitar denuncias, con el objetivo de proteger del fraude a inversionistas y al público, según David Colapinto, abogado y fundador del “National Whistleblower Center”.
Además, “las amenazas de represalias por parte del presidente y de sus aliados contra un denunciante de la comunidad de inteligencia contravienen el ideal fundamental de nuestra nación respecto a la libertad de expresión”, dijo en una declaración escrita John Kostyack, director ejecutivo del “National Whistleblower Center”.
Washington Post: “As Trump lashes out at whistleblower, analysts fear law offers meager protection” from Matt Zapotosky and John Wagner on September 30, 2019.
“So what kind of protection is this whistleblower going to get through this system?” Said David K. Colapinto, the co-founder of the National Whistleblower Center. “But you got to understand that prior to 2015, there was nothing on the books. This is considered an advancement.”
If whistleblowers are fired, demoted or otherwise punished, they can now at least pursue internal remedies, though they cannot go to court, Colapinto said. Such cases, he said, “usually end poorly for the whistleblower.”
“From our point of view, protecting the whistleblower is of paramount importance, and this case is going to be a real test of these laws to see if they can make them work,” Colapinto said.
If the whistleblower’s identity was itself protected as a government secret, executive branch officials who disclosed it could be subject to criminal investigation for leaking national security information – not unlike when CIA officer Valerie Plame’s identity was disclosed publicly in the George W. Bush administration, legal analysts said.
If it were not, government officials who revealed it could be accused of violating the privacy act, Colapinto said. That is a misdemeanor crime that comes with a $5,000 fine, thought the officials could also be sued.
Colapinto said his firm pursued such a case when Defense Department officials were accused of disclosing information from the background investigation of Linda Tripp, who secretly recorded conversations with Monica Lewinsky, a former White House intern, about her sexual relationship with President Clinton. The government, Colapinto said, ultimately settled for $595,000.
NBC: “Fact check: Where whistleblower rules changed before Ukraine complaint?” from Jane C. Timm on September 30, 2019.
David Colapinto, an attorney with Kohn, Kohn, and Colapinto who represents whistleblowers, and who is a co-founder of the National Whistleblower Center, said whistleblowers need only have a “reasonable belief” that wrongdoing occurred. The claim that the Ukraine whistleblower hadn’t followed procedure or somehow shouldn’t be protected as a whistleblower was “ridiculous,” he said.
USA Today: “‘Horrific and chilling’: Whistleblower advocates complain as Trump tries to identify source of Ukraine complaint” from Bart Jansen and Kevin Johnson on September 30, 2019.
John Kostyack, executive director of the National Whistleblower Center, said “threats of reprisals by the president and his allies against the intelligence community whistleblower are contrary to our nation’s core ideal of freedom of speech.”
“If we want to know about lawbreaking, we need to gather evidence from the people who have it,” Kostyack said. “Any time we send a message that they are going to be punished, we are essentially discouraging people who have this evidence from stepping forward. We need them. We need whistleblowers.”
Kostyack urged members of both parties of Congress to affirm that the “whistleblower deserves the highest level of protection from retaliation, including the ability to maintain anonymity.”
MTV News: “Why Whistleblowers Are As American As The Declaration Of Independence” from Christianna Silva on September 30, 2019.
It’s true: David Colapinto, a lawyer and one of the founders of the National Whistleblower Center, told MTV News that whistleblowers risk losing their careers, damaging their reputations, and even “bodily harm.” Think of Snowden, the former CIA employeewho, in 2013, leaked classified information from the NSA that showed the extent of the global surveillance programs run by the American and British government. The U.S. government filed a criminal complaint against him, and he’s now living in asylum in Russia. And many people would consider Snowden lucky by whistleblower standards: Frank Serpico, a New York City police officer who confronted the corruption within the police department was shot in the face during a botched drug raid. He lived but left the U.S. a year after the 1971 attack.
So it should come as no surprise that today’s whistleblower wants to keep their identity a secret. Moreover, they have a right to keep their identity confidential, and unmasking who the whistleblower is is dangerous not only for the individual but also for the public perception of the case.
“This is going to become a very hot political issue in the United States, and people are going to be taking sides,” Colapinto told MTV News. “People are going to be charged up and there is a tactic that is often used in political fights of this nature: Shoot the messenger to distract, go on a smear campaign, those types of things to discredit a whistleblower, which has nothing to do with the merits of the case.”
“It serves to discredit [the whistleblower] and hopefully that people won’t take it seriously,” Colapinto said of such smear campaigns. “It’s really engaging in a campaign against the individual who is not equipped to play on the same level. It’s not a level playing field to have the operation of the White House working against an individual.”
“That actually helped in this case because you can’t say, OK, there’s no merit to what’s being said here,” Colapinto told MTV News. “This isn’t just something that somebody made up or is unfounded or is a wild accusation. This is a serious charge against the President and it is well-founded. So in that sense, the statute [helps] the whistleblower.”
USA Today: “Donald Trump: ‘We’re trying to find out’ the identity of whistleblower who made Ukraine complaint” from David Jackson on September 30, 2019
“We have a centuries-old bipartisan consensus that those with evidence of wrongdoing should be encouraged to step forward, not intimidated from doing so,” said John Kostyack, executive director of the National Whistleblower Center, a nonprofit group that promotes whistleblower protection laws.
Kostyack urged lawmakers from both parties “to affirm that this whistleblower deserves the highest level of protection from retaliation, including the ability to maintain anonymity.”
NPR 1A: “What’s the deal with whistleblowing?” on September 30, 2019
David Colapinto talked about what makes a whistleblower and what whistleblower laws apply to the intelligence community on the 1A podcast with Joshua Johnson.
“A whistleblower in the context of the federal government is someone who reports a violation of any law, rule, or regulation, an abuse of authority, gross waste, gross mismanagement, or a substantial and specific danger to public health and safety. And that is uniform across the federal government, that there is a statue that says it is the obligation of employees to report those types of things through particular channels.”
“[Whistleblowing] requires a reasonable belief on the part of the employee that there is a violation of any law, rule, or regulation, or an abuse of authority…And it doesn’t need to be a super violation in order for it to be protected.”
PRI’s The World: “Who is responsible for enforcing the US whistleblower law? The President” on September 27, 2019
The World’s Marco Werman spoke to attorney David Colapinto of the National Whistleblower Center in Washington, DC, about the protections granted by the 1989 Whistleblower Protection Act and the whistleblower report about Trump.
“There are two phases to a whistleblower case,” Colapinto said. “We’re in the first phase, where the whistleblower has submitted his or her concerns and try to get them to the appropriate authorities. They’ve now gotten to Congress. That’s phase one. Phase two is if the whistleblower is identified and suffers retaliation by his or her agency, then phase two would kick in and they would have to file a complaint through the administrative process, depending upon where you work and who you report to.”
VICE News: “What the New York Times Outing a Whistleblower Tells Us About Trump’s Smear Campaign” from David Uberti on September 27, 2019
The central question, said David K. Colapinto, a longtime whistleblower lawyer and co-founder of the National Whistleblower Center, is why personal details leaked to the newspaper in the first place.
“I am more concerned about people in the government disclosing that information to potentially harass the whistleblower,” Colapinto said. “It’s obvious, given the president’s other comments, given what was said earlier this week, that that’s going to be the focus of the president’s defense: to shoot the messenger.”
…There was similar foul play in the leadup to Bill Clinton’s impeachment in 1998. Pentagon officials leaked to The New Yorker information from the private personnel file of Linda Tripp, a Monica Lewinsky confidant who secretly recorded her admission of an Oval Office affair.
Colapinto helped represent Tripp when she subsequently sued the Department of Defense for releasing the records. He told VICE News that Trump’s remarks Thursday at a New York fundraiser, where he appeared to advocate executing leakers to a laughing audience, suggests his administration could similarly violate the law intended to protect intelligence community whistleblowers.
“The president is in charge of enforcing that, and now he’s the one leading the charge trying to unmask the whistleblower, or making snide comments that his audience is laughing about,” said Colapinto, who’s also represented FBI whistleblowers. “It’s shocking behavior. Where do you start?”
CNN: “The whistleblowing process, explained” from Harmeet Kaur on September 27, 2019
Whistleblowers come forward out of a sense of duty, David Colapinto, co-founder and general counsel of the National Whistleblower Center, told CNN.
“It takes a lot for somebody like this whistleblower, who has presumably worked in the intelligence community for some time, to decide to take the risk of what might happen to his or her career to report concerns of this magnitude,” Colapinto said.
MSNBC: “Whistleblower Center director: Trump’s comments on whistleblower are ‘really disturbing'” on September 27, 2019
John Kostyack talked about the recent threats against the intelligence community whistleblower and the importance of protecting whistleblowers from reprisal with Chris Jansing.
The Guardian: “Donald Trump’s smears designed to silence would-be whistleblowers, experts warn” from Ed Pilkington on September 26, 2019
David Colapinto, a prominent whistleblower lawyer who co-founded the National Whistleblower Center, said that these internal provisions and the lack of any external safeguards were a strong disincentive to anyone thinking about coming forward. “The system inherently has a chilling effect because it requires potential whistleblowers to identify themselves to their seniors and that can be career suicide.”
Between 2012 and 2014, Barack Obama tried to stiffen protections across the federal government. But the reforms still left intelligence officials singularly exposed.
Unlike other branches of government, whistleblowers in intelligence fields cannot appeal against their treatment to the courts. In cases of retaliation, they have no recourse to independent outside arbiters but must seek the support of senior officials within the intelligence agencies who might be swayed by the political demands of their masters.
Colapinto said that Obama’s changes left would-be whistleblowers in the intelligence services still deeply vulnerable. Which is why, he said, Trump’s targeting of the current whistleblower was so cynical.
“This treatment is a completely inappropriate way to deal with a whistleblower,” he said. “It will lead to demoralization, a sense of hopelessness that you cannot blow the whistle on people who are too powerful – and it will set a terrible precedent that can only encourage further misconduct from those in high office.”
NPR: “‘Whistleblowing Is Really In Our DNA’: A History Of Reporting Wrongdoing” from Brian Naylor on September 25th, 2019
Whistleblowers have been reporting wrongdoing in government institutions ever since. But it has always been a risk, says attorney David Colapinto. “Whistleblowing is a career-limiting phenomenon in the federal workforce,” he says. “That’s why a lot of people don’t do it.”
Colapinto, a founder of the National Whistleblower Center, says the Whistleblower Protection Enhancement Act allows workers to report wrongdoing they see in their agencies directly to members of Congress. But there are different rules for people who work in national security. “If you work in the intelligence community you must bring your concern to the inspector general before you can go to Congress,” he says. But an employee at the Department of Housing and Urban Development, for example, “can go right to [their] member of Congress or the committee that has jurisdiction over housing” and report their concerns. “Those are two major differences, as we’re seeing play out,” Colapinto says.
The whistleblower who reportedly became concerned about conversations President Trump had with the president of Ukraine went through proper channels and reported his or her concerns to the intelligence community’s inspector general, says Colapinto. The IG deemed it an “urgent concern” and reported it to acting Director of National Intelligence Joseph Maguire, who is under law supposed to submit it to Congress. However, he has so far refused.
C-SPAN: “David Colapinto on Whistleblower Laws and the Intelligence Community” on September 24th, 2019
David Colapinto talked about whistleblower laws that apply to the intelligence community on C-SPAN’s National Journal morning show with John McArdle.
The Atlantic: “The Problem With the Whistle-Blower System” from Mike Giglio on September 21, 2019
“It’s one of the biggest frustrations—that the people you’re blowing the whistle on have so much say over this,” David Colapinto, a founder and general counsel of the National Whistleblower Center, told me.
If there is a case of reprisals against the whistle-blower by superiors, meanwhile, then the case is decided by the DNI. Such cases are full of legal and administrative hurdles and can take years to play out. “So the very agency that is being accused of the misconduct sits as the prosecutor, judge, and jury, so to speak, on the whistle-blower’s retaliation case,” Colapinto said.
Advocates and lawyers have in the past raised two potential remedies to this problem: Create a legally protected channel for whistle-blowers to go to Congress on their own, or a way to let their complaints reach federal court. Neither has been adopted into law, however.
The recent complaint, Colapinto told me, shows why the congressional outlet for whistle-blowers is so important. Ideally, he said, their complaints could be brought directly to the House and Senate Intelligence Committees, whose members hold security clearances and are well versed in dealing with classified material. “They are perfectly … capable of handling classified information. That’s how they’re set up,” he said. “They do it all the time.”
He added: “[Whistle-blowers] shouldn’t have to jump through all these hoops. And now we’re seeing the abuses of that process playing out.”
Washington Post: “Trump’s rhetoric will have a chilling effect on whistleblowing, legal experts say” from Reis Thebault on September 20, 2019
Legal protections for government employees seeking to report wrongdoing date back more than 240 years to the Continental Congress, and they’ve been rewritten many times since. But these revisions still do not go far enough to protect employees’ rights, said David Colapinto, the general counsel at the nonprofit National Whistleblower Center.
Today, the Whistleblower Protection Act and the Intelligence Community Whistleblower Protection Act are the primary statutes outlining public employees’ rights to speak out about misconduct.
All government employees can safely disclose violations of laws or regulations, waste or mismanagement, abuse of authority and dangers to public health and safety, but how you can report that depends on where you work.
If you work in the intelligence community, where the information at hand is usually sensitive or secret, your rights are more limited, Colapinto said. You can blow the whistle up the chain of command and to your agency’s inspector general, but you’re rarely permitted to go beyond that.
The only exception is if an official lodges a complaint and the inspector general of the intelligence community determines it to be credible and troubling enough to be considered a matter of “urgent concern” — which happened with the grievance about Trump’s communication with a foreign leader, believed to be the new president of Ukraine. That ruling is supposed to trigger notification of congressional oversight committees.
But in this case, acting director of national intelligence Joseph Maguire has refused to share details about Trump’s alleged transgression with lawmakers. Colapinto called this move unprecedented and said it could further erode trust in the intelligence community.
“The system of whistleblowing will fail in the intelligence community if that complaint is not transmitted to Congress,” he said. “To have a whistleblower complaint verified as credible and urgent and not end up where it’s supposed to go would be the worst possible outcome. There would be a crisis in confidence in the intelligence community.”
NPR: “Whistleblower Complaint, Student Climate Protests, Catastrophic Texas Flooding ” from NPR Up First on September 20, 2019
Stephen Kohn spoke on NPR’s UpFirst about the procedure of whistleblowing within the intelligence community and the ramifications of not following those procedures.
The National Law Journal: “US House Weighs Lawsuit Forcing Disclosure of Mystery Whistleblower Complaint” from Jacqueline Thomsen on September 19, 2019
David Colapinto, general counsel for The National Whistleblower Center, said that going to court could be a risky move for the House, as it’s unclear exactly how long the litigation could take—or if a judge would even rule in their favor.
He said that issues like who can have access to allegedly privileged information could raise tricky legal questions that ultimately could make their way to the U.S. Supreme Court.
“You don’t get to the Supreme Court in a week or a month,” Colapinto said. “This statute says, this is the process to communicate an urgent whistleblower concern. We’re already over a month in. So how long does it take for a whistleblower to communicate an urgent concern to Congress?”