Government Whistleblowers

 John Kostyack is the executive director of the  National Whistleblower Center

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.

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I was punished for telling the truth. You hear that a lot from whistleblowers. Not what they expected for doing the right thing. Some organizations see whistleblowers as disloyal. So, when they fire, harass, demote, dox, or professionally blacklist a worker, supervisors see it as punishment, not retaliation.

So, anonymity is key. The laws protecting whistleblowers from retaliation are strengthened by provisions for anonymity. What do they need to be protected from? Anyone who has ever gotten on the wrong side of a toxic boss or an unfair co-worker has had a taste of it.

Protection tips

The National Whistleblower Center offers a list of whistleblower protection practices to avoid retaliation. The NWC site shares the story of Jane Turner, a 25-year veteran special agent with the FBI who is also the chairwoman of the NWC’s Whistleblower Leadership Council. She led the FBI’s  programs for women and children on North Dakota Indian reservations and reported problems with the program. Turner said the aftermath was the destruction of her career and finances and post-traumatic stress syndrome.

Here’s how they describe her case:
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11/6 update: Chris Cillizza at CNN comments on Rand Paul’s strategy at a Monday Trump rally,

“What Trump and Paul are trying to do is put the whistleblower at the end of this process. Unless the whistleblower reveals him or herself, how we can trust that anything he or she says is right? We have to know who this person is to judge whether they are some bitter Democrats or loser Never Trumper!

That’s not what a whistleblower is or what they do. Whistleblowers are the start of a process, not the end of it. And they are rarely the centerpiece of the process.”
He gets NWC director John Kostyack to explain how it works.

11/4: The Ukraine scandal whistleblower’s work is done, but the president and his supporters continue to call for him or her to come forward. They say his bias must be exposed. Democrats say he is no longer a key witness; others have confirmed the facts in the whistleblower complaint. Anonymity will protect him or her from certain harassment and retaliation.

Still, some lawmakers and conservative media sites are naming a CIA officer they say is likely the whistleblower. On Wednesday, the conservative news site Real Clear Politics reported that the whistleblower is CIA analyst who worked at the White House – something the New York Times reported to some outcry. Real Clear Politics puts a name to it and offers this confirmation: the name of “a government official fitting that description… has been raised privately in impeachment depositions, according to officials with direct knowledge of the proceedings, as well as in at least one open hearing held by a House committee not involved in the impeachment inquiry.“

The whistleblower’s lawyers won’t confirm or deny. They have offered to have the whistleblower answer written questions from GOP lawmakers under oath.  Most major press outlets are not reporting the name.
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Federal employees who face retaliation for blowing the whistle have an option for redress: the Merit Systems Protection Board (MSPB).

The only problem is — there’s currently no one on the board and their hasn’t been a quorum since 2016. It has a backlog of more than 2,000 cases and a record of siding with the boss.

The MSPB, whose three board members are appointed by the President and confirmed by the Senate, reviews the whistleblower cases of federal employees and makes the final determination. Somebody has to have the back of the federal employees who have been marching into the Capitol to testify each day.  A piece in Mother Jones talks about how recent concerns over whistleblower protection have highlighted the role of the board — and the problem of not having one.

When it’s working, the MSPB protects whistleblowers who reveal wrongdoings in the management of most federal agencies, covering more than 2 million civilian federal employees. The board was created in 1979 to address retaliation against whistleblowers. When whistleblowers were demoted, stripped of responsibilities, or fired, they were able to turn to the three-member board of the MSPB for intervention. Recent members of the board have been labor lawyers with experience in government.
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Dan Zak in The Washington Post muses on the role of whistleblowers:

The whistleblower has gotten into the president’s head. In a Cabinet meeting Monday, Trump referenced whistleblowers 15 times. “You know, these whistleblowers, they have them like they’re angels, okay?” he said.

In a way, whistleblowers are like angels, looking after the well-being of government and corporations on behalf of the public — which may never be aware of their existence, let alone their names. They report waste, fraud and abuse on a daily basis, all across Washington and the private sector. Federal whistleblowers made over 3,300 disclosures in fiscal years 2017 and 2018. Members of the intelligence community made 563 outreaches to their own whistleblowing hotline in fiscal year 2018, and are on pace to exceed that number this year.

The piece includes a quote from NWC chair Stephen M. Kohn: “You can’t have a government based on rule of law unless citizens can freely report potential violations of the rule of law.” 


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In a staff editorial entitled “Thanks Whistleblower, Your Work is Done,” The New York Times includes an annotated version of the original intelligence community whistleblower complaint. They note that “every piece of information that the public first learned from the whistle-blower’s complaint has been corroborated.” You can find it all in the transcript of the call, congressional testimony and news reporting.

The Times offers a highlighted version of the compliant: Yellow marks the points confirmed by White House transcript, blue for statements from officials, purple for testimony, green for news reports and red for “not yet proven.” There’s one minor fact in red.

 Highlighted in yellow.

The President did solicit interference.
“I would like you to do us a favor,” Mr. Trump said in a July 25 phone call with Mr. Zelensky, according to the White House account
 of the call…


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The clamor continues for the intelligence community whistleblower to come forward. But, the Democrats now say they’re corroborated everything in the initial whistleblower report and may not have to interview him or her. The whistleblower’s lawyers agree.

President Trump created the office via executive order.

For some, the case raises questions: Why do whistleblowers need to remain anonymous? Why don’t they use internal reporting programs instead of going to the press or a lawyer with information about wrongdoing?

Consider the headline in the Mother Jones story on Thursday’s report from the Veterans Affairs Inspector General.

IG Says VA Whistleblower Office Mostly Screwed Whistleblowers


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first amendment government employeesBack in the day, a reporter could call someone at an institution or government agency, do an interview and write a story. Those days are long gone. All inquiries now get sent straight to the press office. Frequently, the response is an anemic written statement.

Understandably, organizations want to control their message. But what rights do government employees have to speak publicly – to the press or otherwise? And how do whistleblowers protection rules dictate what an employee can disclose to the public?

Two pieces out this week talk about free speech rights for government employees. The Poynter Institute, a journalism training center, highlights a new report from the University of Florida on the first amendment and public employees right to speak to the media.

Note that whistleblower protection rules sometimes dictate whether it is wise for a whistleblower to go to the press.
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FBI whistleblower Michael German writes in today’s Washington Post about flaws in the system designed to protect intelligence community whistleblowers.

The intelligence agencies successfully lobbied for exemptions from whistleblower protections by arguing that these complicated reporting processes are necessary to protect classified information. But this is wrong on two counts. First, intelligence community whistleblowers and