In early August 2019, an anonymous whistleblower filed a complaint with the Inspector General of the Intelligence Community, Michael Atkinson. The complaint describes a July 25th phone call between President Trump and Ukrainian president Volodymyr Zelensky – potential evidence of illegal solicitation of foreign involvement in a U.S. election. It also describes various subsequent acts by the White House to conceal the phone call. This whistleblower complaint, first publicized on September 13th and then released to the public in an unclassified format on September 26th, unleashed a storm of controversy and ultimately an announcement by Speaker Nancy Pelosi that the House of Representatives was launching an impeachment inquiry. On October 6th, news broke that a second whistleblower had come forward to corroborate the complaint.
The controversy has raised many questions about whistleblower law, policy and procedures governing intelligence community whistleblowers. The National Whistleblower Center, whose mission includes educating the public about the importance of whistleblowers and whistleblower protections, is communicating with the media and otherwise lending its expertise to help people separate fact from fiction. Here are some of the key questions that we are helping to answer.
What do we know about the whistleblowers’ credibility?
Two key allegations made by the first whistleblower – about the request of President Trump for assistance with investigating his political opponent and about subsequent efforts to conceal this request from the public – appear to be supported by the White House’s own rough transcript of the call and subsequent statements. In addition, the Inspector General of the Intelligence Community found that the complaint is credible and that it raises urgent concerns about abuse of authority.
Acting DNI Director Maguire testified before Congress that the whistleblower “is operating in good faith and has followed the law.” Additionally, on October 1st, Senator Chuck Grassley (R-IA), one of the foremost champions of whistleblower rights in Congress, released a statement that says: “This person appears to have followed the whistleblower protection laws and ought to be heard out and protected.”
Note that Congressional investigators do not need to evaluate the whistleblowers’ credibility based solely on the complaint. They will have plenty of witnesses to interview and documents to review based on the investigative leads provided in the complaint. Due to the whistleblowers stepping forward and the pressure applied by the National Whistleblower Center and many others to ensure the Acting Director of the National Intelligence forwarded the complaint to Congress as required by law, bipartisan Congressional investigators are now well-positioned to conduct a thorough investigation.
Do these whistleblowers meet the legal definition of a whistleblower?
President Trump and others in the administration have alleged that the form to be completed by intelligence community whistleblowers in submitting complaints allows only eyewitness evidence and that the whistleblower in this case failed to meet this requirement. To the contrary, the law makes a federal employee a protected whistleblower if they submit any kind of evidence, including second-hand evidence, that the employee “reasonably believes” shows a “violation of any law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
In his October 1st statement, Sen. Grassley, who has written many of the critical whistleblower laws, responded to this debate: “When it comes to whether someone qualifies as a whistleblower, the distinctions being drawn between first- and second-hand knowledge aren’t legal ones. It’s just not part of whistleblower protection law or any agency policy. Complaints based on second-hand information should not be rejected out of hand, but they do require additional leg work to get at the facts and evaluate the claim’s credibility.”
Additionally, in upholding the complaint, the Inspector General found that the whistleblower had put forth both first-hand and second-hand evidence, and that the form they completed explicitly cited both kinds of evidence.
What if the whistleblower was politically motivated to blow the whistle?
In 2012, Congress strengthened whistleblower protections for federal employees. In 2013, President Obama extended similar protections for intelligence community employees through a presidential directive and in 2014 Congress codified those protections for intelligence community employees. Under the 2013 presidential directive, any whistleblower reprisal claim must be adjudicated consistent with the policies and procedures used to adjudicate reprisal claims filed under the Whistleblower Protection Act, 5 USC 2302(b)(8).
So, what are the policies & procedures referenced in the presidential directive that should be used to protect whistleblowers employed in the federal government?
The whistleblower statute says a disclosure shall not be excluded from protection because – “the disclosure revealed information that had been previously disclosed” or “the employee’s or applicant’s motive for making the disclosure.” As a matter of federal law, the whistleblower’s “motive for making the disclosure” does not matter when considering whether that person is entitled to whistleblower protection.
Attempting to de-legitimize the intelligence community whistleblower because he or she might be politically motivated violates one of the fundamental principles of whistleblower protection law. A whistleblower’s motive cannot be considered to strip legal protection.
Whenever someone says someone is not a “real” whistleblower due to the whistleblower’s motives for filing the complaint they’re not respecting established principles of whistleblower protection law.
Whistleblower disclosures of wrongdoing are evaluated under the “reasonable belief” standard. If there’s a “reasonable belief” the law was violated or there was an “abuse of authority” the whistleblower is protected. The moment the Trump/Ukraine whistleblower raised concerns either internally at the CIA, as reported, or by filing the written disclosure with the Inspector General, that employee became a real whistleblower and he or she is entitled to full legal protections.
The underlying merits of the facts alleged by the whistleblower might be proven true of false by the appropriate authorities, but regardless of that outcome it does not strip the whistleblower of protection for making a disclosure of wrongdoing. The reason whistleblowers are protected whether the allegations prove true or false, and regardless of a motive, is to encourage reporting of wrongdoing.
Congress has recognized these whistleblower principles time and again, by strengthening protections for federal government whistleblowers at least a half-dozen times over 40 years. The underlying policy goal to protect whistleblowers in the federal government is to encourage employees to report, while recognizing that reporting misconduct is very difficult to do & likely will result in retaliation.
Are reprisals against the whistleblowers a serious concern?
Under the laws governing intelligence community whistleblowers, these whistleblowers are entitled to have their identity kept confidential and are protected against reprisals by others in the executive branch. However, given the attacks on the whistleblowers by President Trump and others, whistleblower advocates are very concerned that their identities will be exposed and that their careers and personal safety will be jeopardized. We are also concerned that future potential whistleblowers will be deterred from reporting evidence of wrongdoing to authorities given the lack of fair treatment given to these whistleblowers.
In response to these threats, our executive director John Kostyack stated:
“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.”
Stephen M. Kohn, Chairman of the Board of Directors at NWC and author of the Whistleblowers Handbook, stated:
“This moment is a test of whether today’s members of Congress are willing to uphold the Nation’s founding principles. In the first whistleblower law, passed in 1778, the Continental Congress declared that anyone in the service of the U.S. with knowledge of serious wrongdoing has a duty to deliver that information to Congress as soon as possible. This whistleblower followed the law and upheld his patriotic duty. Now it is time for Congress to reaffirm its own laws prohibiting reprisals and guarantee the whistleblower’s right to remain anonymous. If it fails do so, it will be a disastrous setback for the Nation’s whistleblowing system.”
NWC urges the leaders of the congressional intelligence committees to speak out in favor of whistleblower protection and reiterate that this is a system where the threat of retaliation is not permitted, whether direct or implied.
It is important to note that partisan battles over whistleblowing before and during Trump impeachment appears to have had no impact on public support for whistleblower protection, including support among Republicans. An October 2020 poll from the Whistleblower News Network demonstrates the desire to protect whistleblowers – in the public and private sector – spans across political parties, with Democrats, Republicans, and Independents all favoring stronger protections for whistleblowers and Congress making whistleblower protection laws a priority.
Are intelligence community whistleblowers adequately protected by the law?
Intelligence community whistleblowers operate under a different set of rules than other federal employees or corporate whistleblowers that leave them uniquely vulnerable. There is a large framework of laws and executive orders that govern whistleblowers in the intelligence community, including Executive Order 12731, the Intelligence Community Whistleblower Protection Act, the Inspector General Act, the Intelligence Authorization Act for Fiscal Year 2010, Presidential Policy Directive 19 (“Protecting Whistleblowers with Access to Classified Information”), and the Intelligence Authorization Act for Fiscal Year 2014.
Executive Order 12731, issued in 1990, requires all federal employees to “disclose waste, fraud, abuse, and corruption to authorities.” This Executive Order makes such disclosures mandatory in order to ensure standards of ethical conduct for all executive branch employees.
The Whistleblower Protection Act (WPA) is one of the primary statues that outlines public employees’ right to speak out about misconduct, aimed at ensuring that all government employees can safely disclose “violations of laws, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority and or a substantial and specific danger to public health and safety.” However, it specifically excludes whistleblowers in the intelligence community as it applies to employees who work in an unclassified environment.
To assist intelligence community whistleblowers excluded under the WPA, Intelligence Community Whistleblower Protection Act (ICWPA) was passed in 1998. Under the terms of the legislation, a whistleblower who intends to report to Congress a complaint or information about an “urgent concern” is required to go to the inspector general (IG), who then has a 14-day period to determine “whether the complaint or information appears credible.” If it is found to raise an urgent concern and to be credible, then the IG must transfer the information to the Director of National Intelligence, who is required to forward the complaint to the congressional intelligence committees within seven days.
Alternatively, if the IG does not find the complaint to be credible, the whistleblower may communicate with the intelligence committees in Congress – but only if they have the permission of the director of national intelligence, who is appointed by the President. As our general counsel David Colapinto noted in an interview with the Guardian, “The system inherently has a chilling effect because it requires potential whistleblowers to identify themselves to their seniors and that can be career suicide.”
Under the ICWPA, an “urgent concern” is defined as:
- A serious or flagrant problem, abuse, violation of law orExecutive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information, but does not include differences of opinions concerning public policy matters;
- A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration, or operation of an intelligence activity; or
- An action constituting reprisal or threat of reprisal in response to an employee’s reporting an urgent concern.
ICPWA also includes a provision protecting the whistleblower’s identity from disclosure, a protection also found in the Inspector General Act of 1978. However, aside from that provision, ICPWA does not offer whistleblowers protections from retaliation and does not provide mechanisms for challenging retaliation.
In response to this weakness, the Intelligence Authorization Act for Fiscal Year 2010 included the first general provisions for protecting intelligence community whistleblowers, encouraging lawful disclosures to the OIGIC. However, the majority of its provisions are general and subject to multiple interpretations.
Between 2012 and 2014, as mentioned above, additional efforts were made to strengthen protections for the intelligence community. Presidential Policy Directive 19 was signed in 2012 and provided the first specific prohibitions of reprisals against intelligence community whistleblowers. The Intelligence Authorization Act for Fiscal Year 2014 codified these provisions into law, and the Intelligence Community Directive (ICD)-120 established how provisions would be implemented.
Also in 2014, Congress enacted 50 U.S.Code §3234 which clarifies what information may be included in an intelligence community whistleblower complaint, including “a violation of any law, rule or regulation” or “abuse of authority.” Section 3234 requires the President to provide for the enforcement of this statute.
Although these reforms include provisions against retaliation, they still leave intelligence community whistleblowers extremely vulnerable. If they are retaliated against for their disclosures, they do not have access to the court system but rather have to rely on an internal review process that carries significant risk of bias.
How are whistleblowers’ anonymity protected?
As noted above, whistleblowers are entitled to their anonymity as several whistleblower protections laws include clauses to protect whistleblower identities and guarantee confidentiality.
Both the Whistleblower Protection Act (WPA) and the Inspector General Act state that a whistleblower’s identity must be protected unless the employee making the disclosure consents to disclosing their identity. The Inspector General Act states:
(h) The identity of any individual who makes a disclosure described in subsection (a) may not be disclosed by the Special Counsel without such individual’s consent unless the Special Counsel determines that the disclosure of the individual’s identity is necessary because of an imminent danger to public health or safety or imminent violation of any criminal law.
Additionally, the Inspector General Act mandates the Office of the Inspector General (OIG) must protect whistleblower confidentiality only disclosing it in the same manner as required by the WPA. This act also prohibits retaliation based upon whistleblowers disclosures to the OIG. While the WPA does not explicitly cover intelligence community whistleblowers, the Inspector General Act does after amendments from the Intelligence Community Whistleblower Protection Act (ICWPA).
Anonymity protection provisions are not only detailed in laws pertaining to whistleblowers. Many government-wide laws apply to the cases of whistleblower disclosures and protections, such as the Privacy Act of 1974. The Privacy Act of 1974, 5 U.S.C. §552a prevents any disclosure of the personal information of a government employee without their consent. This clause would prohibit any government or agency official, even the President, from releasing the identity of an employee, whistleblowers included. If violated, civil and criminal penalties would apply to those exposing the identities of government employees.
Retaining the right to confidentiality and anonymity are critical not only for the safety of whistleblowers, but also for the security of the whistleblowing process. Congress delineated these provisions to protect whistleblowers from reprisals in the forms of damages to reputation, loss of career, threats on livelihood, etc.
Under these protections, whistleblowers are entitled to their anonymity. All government officials and employees, even those in the Office of the President, must abide by these protections to guarantee the safety of whistleblowers.
What are the President’s legal duties here?
Under the statutes and clauses listed above, the President has apparent directive to protect these whistleblowers and the integrity of the whistleblowing process. Key provisions in whistleblower protection laws state the President’s duty to uphold whistleblower protections. While some laws are unclear as to whether they apply to the President, others are not.
When Congress strengthened the whistleblower protection law in 2012, it included a provision for requiring the head of each agency to be responsible for ensuring that the law was followed and enforced.
The 2014 intelligence community whistleblower law passed by Congress notes that any “significant changes in [the] working conditions” of an employee as a consequence for a “disclosure of information” to the Inspector General of the Intelligence Community are prohibited. If the employee addressing the complaint “reasonably believes” a law has been broken or an abuse of authority has been perpetrated, they are duly protected under this law. In the Ukraine whistleblower case, The Inspector General cleared the complaint as credible, thus the threats made on the whistleblowers’ careers and lives are demonstrably prohibited.
Further, this statute notes that “the President shall provide for the enforcement of this action.” Therefore, the President himself must enforce these statutes lest he fail in his incumbent legal duties as President. The Presidential responsibilities under this provision are clear in his duty to protect the confidentiality of any and all whistleblowers as required in these protections and within the legal schema. The President indeed has changed the working conditions of the Ukraine whistleblowers, as they cannot perform their responsibilities under threat of retaliation from the very entity charged with enforcing their protection.
President Trump has a legal duty to enforce the whistleblower protection law for all intelligence community employees. That includes enforcing the whistleblower law consistent with the policies and procedures of the Whistleblower Protection Act, 5 USC 2302(b)(8).
Additionally, intelligence community whistleblowers are protected under witness intimidation statues which apply unilaterally to all persons, including the President.
Under these laws, the President cannot threaten the Ukraine whistleblowers as his actions are in direct violation of the statutes created to protect whistleblowers from attacks on their character, career, and livelihoods.
Is there historical precedent for these whistleblowers’ actions?
Yes. The history of whistleblowing by those in the intelligence community or otherwise working to protect national security goes back to the Nation’s founding. In 1778, during the height of the Revolutionary War, the Continental Congress passed a resolution that can be considered the world’s first whistleblower law, stating: “that it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.”
The resolution was passed in response to a petition from ten revolutionary sailors and marines who reported the commander of the Continental Navy for torturing captured British sailors, at great personal risk.
In the many decades since, other famous American whistleblowers from the national security agencies have come forward – Daniel Ellsberg with the Pentagon Papers, Mark Felt (more famously known as “Deep Throat”) with Watergate, Linda Tripp with the Clinton-Lewinsky relationship. Their disclosures brought forward important evidence of wrongdoing – and they each deserve respect and protection, regardless of partisan affiliation.