Whistleblower & Qui Tam Blog

11
October 2019

Whistleblower Attorney Reviews Intelligence Community Whistleblower Protections

Yesterday, leading whistleblower attorney and partner at Kohn, Kohn & Colapinto David Colapinto took an important look at the protections federal whistleblowers have under law. 

On twitter, Colapinto constructed a 31-tweet thread that provided key insight into the treatment of a recent whistleblower complaint made by a member of the Intelligence Community. 

The following is from a Twitter thread that began on October 10th, 2019:

With all of the attacks on the Intelligence Community #whistleblower whose Complaint was publicly released to Congress, it’s time to review some basic principles of federal #whistleblower protection law.

In 2012, Congress strengthened the #Whistleblower protections for federal employees. In 2013, President Obama extended similar protections for intelligence community employees through a presidential directive & in 2014 Congress codified those protections for Intel 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 or 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 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.

Another major principle of federal government #Whistleblower law is that disclosures of wrongdoing can be made anonymously or confidentially to an Inspector General or other authorities to protect the Whistleblower from retaliation. This is well grounded in law and policy. For example, federal employees generally may make non-classified disclosures of wrongdoing to the Office of Special Counsel and OSC may not disclose their identity as the #Whistleblower without the Whistleblower’s consent.  There exist other privacy protections for #Whistleblowers who file complaints that prevent the agency employing the Whistleblower from obtaining information provided by the Whistleblower without the Whistleblower’s consent. The reason for protecting the #Whistleblower’s identity and privacy at the investigation stage is quite simple. Too often government agencies would engage in smear campaigns or ruin the Whistleblower’s career for simply filing a disclosure of wrongdoing. 

When the Trump/Ukraine #Whistleblower filed a disclosure with the Inspector General they had a right to privacy and confidentiality. Asserting those rights be respected by the President and Congress does not de-legitimize the #Whistleblower. It is in the law. 

The last fundamental principle of federal #Whistleblower law for today is to ask what is the proper role of the President under these statutes? When Congress strengthened the #Whistleblower protection law for federal employees in 2012 it included a provision requiring the head of each agency to be responsible for ensuring that the Whistleblower law was followed & enforced. However, when Congress enacted the #Whistleblower protection statute for intelligence community employees in 2014 Congress held the President accountable to ensure that the #Whistleblower law was enforced due to national security concerns. 

The intelligence community #Whistleblower statute reads: “The President shall provide for the enforcement of this section.” 

President Trump has a legal duty to enforce the #Whistleblower protection law for intelligence community employees. That includes enforcing the #Whistleblower law consistent with the policies & procedures of the WPA, 5 USC 2302(b)(8), discussed in this thread.

President Trump’s numerous threats, statements encouraging the unmasking of the #Whistleblower, claims that this is not a real #Whistleblower, etc., violate his duties as President to enforce the #Whistleblower law for intelligence community employees. As POTUS, Trump is legally required to enforce the #Whistleblower statute for intelligence community employees, but instead he has led a rampage against the #whistleblower.

It is not too late for President Trump to comply with the law he has been mandated by Congress to enforce. He could retract his threats, call for fully protecting the #Whistleblower(s) & Order all of his supporters and agencies to cease attacking the Whistleblower & IG. 

By all actions to date it’s very unlikely that President Trump will fulfill his duty to enforce the #whistleblower law in this matter. If these attacks continue and the #Whistleblower’s identity is revealed then Trump must be held to account for his failure to enforce the law. 

On a personal note, as an attorney who has represented #whistleblowers in all contexts for more than 30 years, I believe it is despicable to attack a #Whistleblower for his or her political beliefs or party registration. Are we really that shallow?  Likewise, on a personal note, attacking the #Whistleblower as part of some “Deep State” conspiracy or as a “spy” is completely ludicrous & in itself ignores the #Whistleblower law to protect intelligence community employees. Let’s get serious people.

Visit David Colapinto’s twitter page (@dcolapinto) for more news and resources.

Read about Whistleblower Protections for Members of the Intelligence Community

Read about Federal Laws for Whistleblowers

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About the Whistleblower Blog

The Whistleblower Blog is an editorially independent news and information source, sponsored by a pro bono public service project by Kohn, Kohn & Colapinto, LLP. The blog highlights important news, legal developments and policy issues critical to whistleblowers and their advocates, both in the United States and internationally. The contributors to this blog are respected leaders in their fields, including the authors of key whistleblower law books, current and former legal professors, spokespersons before Congressional committees and other public bodies, directors of non-profit whistleblower advocacy groups, and prominent attorneys specializing in representing/assisting whistleblowers in the United States and throughout Europe, Asia, Africa and South America.