It’s time for Congress to fulfill its constitutional oversight role and protect whistleblowers

by John Kostyack
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It’s time for Congress to fulfill its constitutional oversight role and protect whistleblowers

A national conversation is underway about whether the President’s actions on the Ukraine matter warrant impeachment – a question on which the National Whistleblower Center does not take a position. However, an equally robust conversation needs to happen on a related question: how to respond to the President’s hostile actions toward the Ukraine whistleblowers.

Our view is that the President’s actions are very likely violating laws prohibiting intimidation of witnesses and reprisals against whistleblowers. Moreover, he is failing to uphold his duty to enforce the anti-reprisal law. Regardless of how Congress proceeds on the impeachment inquiry, it must forcefully assert itself here. Congress needs whistleblowers to perform its constitutional oversight role and otherwise ensure implementation of the laws it passes. To defend its role in our system of checks and balances, Congress must insist that the President reverse course.

Whistleblower at risk
President Trump began his attacks on the Ukraine whistleblowers on September 25 when he stated that they deserve the same treatment as spies received in an earlier era, thus suggesting that they deserved the electric chair or firing squad. Since then he has issued a steady stream of attacks on the first whistleblower’s credibility and calls for the whistleblower’s identity to be exposed, in defiance of laws guaranteeing confidentiality. A number of the President’s allies have joined his intimidation campaign, with some going so far as to make death threats and others, including the President’s son Don, Jr., circulating a news outlet’s speculation about the whistleblower’s identity.

These threats to the personal safety and livelihoods of whistleblowers (and those who are mistakenly believed to be whistleblowers) emanating from the President and his allies are unprecedented and pose a serious threat to our democracy. Our democracy depends on a broad commitment to the rule of law, especially from the individual who sits at the top of our law enforcement apparatus. Until now, members of the law enforcement community have consistently affirmed the need for strong whistleblower protections, noting that corruption and crime often is prosecuted only because a whistleblower provides the evidence needed to launch an investigation. Dozens of federal laws protecting and encouraging whistleblowers have been enacted with large bipartisan majorities for this same reason.

Roles for Congress, the president
NWC was gratified to see the leader of the bipartisan Senate Whistleblower Caucus, Senator Chuck Grassley (R-IA), affirm last month, and again last week, with support from Senator Joni Ernst (R-IA), that the first Ukraine whistleblower is deserving of protection. But when Senators Chuck Schumer (D-NY) and Mazie Hirono (D-HI) asked for unanimous consent to a resolution reaffirming the Senate’s support for whistleblower protections, Senator Rand Paul (R-KY) blocked it. This action warrants a powerful response. It is time for every member of Congress to set aside partisanship and defend the principles of whistleblowing and free speech that serve as the cornerstones of our democracy.

Some commenters have suggested that the President has no clear legal duty to stop his calls for the whistleblowers’ identities to be exposed. This is not correct. It is true that some of the key laws protecting the whistleblowers, such as the confidentiality provisions of the Privacy Act and Inspector General Act, are unclear about their applicability to the President.  However, the witness intimidation statutes, which make it a felony offense to: (1) use a “threatening letter or communication” in an attempt to obstruct the “due and proper administration of the law” by a U.S. agency or a Congressional committee, or (2) interfere “with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense,” apply to any person, including the President.

IC Whistleblower rules
Even more relevant is the intelligence community whistleblower law passed by Congress in 2014.  That statute prohibits any “significant change in [the] working conditions” of an employee in the intelligence community as a reprisal for a “lawful disclosure of information” to the Inspector General of the Intelligence Community, if the employee “reasonably believes” that a law has been violated or there has been an abuse of authority. The President and his allies have almost certainly changed the working conditions of the Ukraine whistleblowers, whose claims of abuse of authority were found to be urgent and credible by the Inspector General. As members of the intelligence community, these whistleblowers’ abilities to keep their identities confidential and function quietly behind the scenes is likely to be critical to performing overseas assignments and other important duties. The President and his allies are therefore disrupting both their jobs and their safety.

The whistleblower statute further states that “the President shall provide for the enforcement of this section.” Thus, even if the President’s actions do not yet amount to reprisals leading to a change in working conditions, at the very least he has failed to carry out his mandatory duty to enforce the law against reprisals and to keep the whistleblower’s identity confidential as required by several provisions of the whistleblower protection statutory and regulatory scheme.

It is exceedingly rare for Congress to impose a duty of enforcement of a law on the President rather than a department head. The reason why Congress chose to do so here is instructive. The intelligence community whistleblower law was passed in 2014 in the aftermath of the release of classified information to the media by Edward Snowden, who stated that there was no safe mechanism for him to disclose violations of law through internal channels.  By calling for the President to assert leadership on whistleblower protection, Congress wanted to communicate as strongly as possible that whistleblowers can safely use internal channels without fear of reprisal.

Both parties must protect whistleblowers
Interestingly, the only other whistleblower statute with a similar assignment of the enforcement duty to the President is the FBI whistleblower law. In the 1990s, the National Whistleblower Center lent its support to a case filed by FBI whistleblower Frederic Whitehurst against President Clinton challenging his failure to enforce protections against reprisals in this law. Whitehurst, now an NWC board member, was unlawfully retaliated against for exposing the FBI’s coverup of gross mismanagement at its crime lab, a coverup that led to the unjust incarceration of numerous suspects based on flawed evidence. The Clinton Administration agreed to settle the case in Whitehurst’s favor.

The Whitehurst case does more than just highlight the duty of the President to enforce laws protecting FBI and other intelligence community whistleblowers. It also reminds us that abuses of authority happen in administrations led by both political parties. Members of Congress cannot attack whistleblowers when they make life uncomfortable for a President of their own party and then expect a favorable climate to exist when it is time for whistleblowers to bring forward evidence of possible corruption by an opposing party. Unless Members of Congress from both parties rise in defense of the Ukraine whistleblowers, who followed the very procedures that Congress created for them, many would-be whistleblowers will censor themselves; others will go outside legal channels to get their concerns heard, putting themselves in danger of job termination, prosecution or worse.

It is in everyone’s interest to ensure that this does not happen. Whistleblower laws help ensure that evidence of abuse of power is delivered to authorities charged with carrying out  investigations on behalf of the people. Congress must now vigorously defend these laws by calling out the President’s blatant violations.

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