Can Federal Employees Blow the Whistle on the President?
Yes. Several federal laws permit federal employees to submit disclosures regarding violations of law or abuses of authority committed by the President of the United States or other presidential appointees.
Are federal employees required to report waste, fraud, and corruption to appropriate authorities?
Yes. Executive Order 12731 requires all federal employees to report violations of law, corruption, and abuses of authority to the “appropriate authorities.” The Order states as follows: “Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.”
This Executive Order makes such disclosures mandatory, but the EO is rarely enforced.
What laws protect federal employees from retaliation?
Numerous laws cover federal employee whistleblowers. These laws often include specific departments within the federal government or cover specific forms of disclosure. The below list covers the significant laws protecting federal employees:
The Whistleblower Protection Act permits federal employees, (or any other person), to report allegations that the President or other government officials violated the law or abused their authority. The Office of Special Counsel handles these complaints. The two agencies responsible for administering the Whistleblower Protection Act, the Office of Special Counsel and the Merit Systems Protection Board websites have information on their websites regarding the law. Regarding the Whistleblower Protection Act, See Whistleblower Protections for Federal Employees.
The Lloyd-LaFollette Act permits all federal employees to communicate information that is a matter of public concern to Congress or any Member of Congress.
The Intelligence Community Whistleblower Protection Act permits all members of the intelligence community, (including CIA, NSA, DNI, or military intelligence officials), to disclose information regarding violations of law or abuses of authority to an agency Inspector General or the Intelligence Committees of the House or Senate.
The Military Whistleblower Protection Act permits members of the Armed Services to disclose violations of law or abuses of authority to their chain of command, the Inspector General or Congress.
The FBI Whistleblower Protection Act permits FBI agents and employees to disclose violations of law or abuses of authority to the Department of Justice Inspector General, the FBI Office of Professional Responsibility, the Director of the FBI, Members of Congress, or persons within an agent’s chain of command.
The Privacy Act can protect federal employee whistleblowers whose confidential personnel information is released in violation of that law. Whistleblowers have used this Act when federal agencies have released derogatory information on a whistleblower in order to discredit him or her. The Department of Justice publishes a detailed guide to the Privacy Act.
The First Amendment of the US Constitution. This amendment protects speech, which includes government employee whistleblowing on matters of public concern. However, the courts have generally required federal employees to use the specific statutory laws enacted by Congress to enforce their First Amendment rights. Some of the significant cases explaining these legal principles are Harlow v. Fitzgerald, Bush v, Lucas, Sanjour v. EPA, Weaver v. Wick, and most recently, Elgin v. Department of Treasury.
What about whistleblower rights for employees within the Intelligence Community (the agencies of the federal government for which the Trump whistleblower worked)?
The Intelligence Community Whistleblower Protection Act, 50 USC. § 3234, defines a protected whistleblower disclosure in a precise fashion.
First, “any employee of a covered intelligence community element,” such as the CIA or the NSA, may make a report to any of the following persons: “the Director of National Intelligence (or an employee designated by the Director of National Intelligence for such purpose), the Inspector General of the Intelligence Community, the head of the employing agency (or an employee designated by the head of that agency for such purpose), the appropriate inspector general of the employing agency, a congressional intelligence committee, or a member of a congressional intelligence committee.”
Second, the whistleblower does not need to have definite proof of the violation, but only needs to “reasonably believe” that his or her information “evidences” violations covered under the law.
Third, the type of misconduct or violations covered under the whistleblower law for which disclosures may be made are defined as follows:
“(1) a violation of any Federal law, rule, or regulation; or
“(2) mismanagement, a gross waste of funds, an authority, or a substantial and specific danger or safety.”
Disclosures made within these parameters are protected, and the law prevents retaliation. However, the enforcement mechanism for this law is very weak and does not permit the employee to challenge retaliation in court. Additionally, under the law, the ultimate authority responsible for protecting intelligence community whistleblowers is the President of the United States.
In addition to the whistleblower protection law, President Obama signed a Presidential Directive setting forth procedures for protecting national security/intelligence community whistleblowers. See https://www.kkc.com/assets/Site_18/files/int/intelligence_presidential-policy-directive-19-oct-10-2012.pdf.
The website of the Director of National Intelligence contains an explanation of the rights afforded Intelligence Community whistleblowers.
What law did the whistleblower whose disclosures regarding President Trump and his discussions with the President of Ukraine use to report his whistleblower allegations?
The whistleblower who filed an “urgent concern” regarding communications President Trump had with the President of Ukraine used a special law officially known as “Whistleblower Protections for Intelligence Community Employees Reporting Urgent Concerns to Congress.” These laws are contained in Title VII of Public Law 105-272, and were signed into law on October 20, 1998 and the Inspector General Act, 5 USC. App. 8H.
The law created authorized procedures for Intelligence Community employees to report “urgent concerns” to Congress. Employees must first submit their concern to the appropriate Inspector General, and thereafter procedures are established for the employee’s complaint to be provided to the Intelligence Committees of the House or Senate. The law defines what an “urgent concern” is and sets forth very specific requirements for both the employees and the Inspectors General for making the reports. The relevant procedures are explained on the website of the Director of National Intelligence. This website also contains a detailed “summary” of the mandatory procedures outlined in this law.
What if I signed a Nondisclosure Agreement or a Gag Order?
Nondisclosure agreements that prevent federal employees from reporting gross waste, fraud, abuses of authority, or violations of law to appropriate authorities are illegal and void. The Whistleblower Protection Act, which covers most federal employees, prohibits nondisclosure agreements that prohibit disclosures to Congress and/or an Inspector General. Also, federal budget law prohibits the use of any federal monies to implement nondisclosure agreements that prohibit the right of employees to report fraud, corruption or violations of law to Congress or an Inspector General. Section 744 of the budget act states as follows:
No funds appropriated [by Congress] . . . may be used to implement or enforce . . . any . . . nondisclosure policy, form, or agreement if such policy, form, or agreement does not contain the following provisions: ‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities [concerning the right to communicate to] Congress . . . [or] an Inspector General [regarding a] violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
Regarding reporting allegations that may be classified, any nondisclosure agreement must “make it clear that [the nondisclosure agreement does] not bar disclosures to Congress, or to an authorized official of an executive agency or the Department of Justice, that are essential to reporting a substantial violation of law.”
If I am a federal employee and want to blow the whistle on the President or a presidential appointee, what should I do?
Proceed with extreme caution and hire an expert whistleblower lawyer. Laws protecting federal employees are notoriously weak and often very complex. Generally speaking, laws protecting federal employees are not as strong as those covering private-sector employees. Most of the laws do not permit federal employees to have jury trials, and some prevent any judicial review whatsoever.
David Colapinto, whistleblower attorney at Kohn, Kohn & Colapinto, testified in front of the House Subcommittee about the importance of protecting federal whistleblowers. Read his testimony: “Hearing on the Importance of Federal Whistleblowers”
What are the limits of this FAQ? Is there a disclaimer concerning the information presented here?
Whistleblower laws are complex. There are several qui tam or reward laws that can result in a whistleblower obtaining a multi-million-dollar judgment. Each of these laws has specific filing requirements. Additionally, there are over 50 different federal anti-retaliation laws designed to protect whistleblowers from discrimination. Again, each of these laws has various lengths of statutes of limitation, filing procedures, and definition of a protected disclosure.
These FAQs give whistleblowers an overview of significant whistleblower qui tam, reward, or anti-retaliation laws. They are not comprehensive. If you believe you may have a whistleblower case, you should contact an attorney and obtain specific advice based on the facts of your case. You cannot rely only on the information in this FAQ to determine whether or not you have a valid claim.
A critical resource for those thinking of blowing the whistle is The New Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself (Lyons Press 2017). The Handbook contains a detailed discussion on all major whistleblower laws and has extensive citations to legal cases and statutes the protect whistleblowers. It is an invaluable resource.
Because of the complexity of the whistleblower laws, we disclaim all liability in respect to actions taken or not taken based on the contents of this FAQ. The FAQ is a summary guide to understanding your rights. You should contact an attorney with expertise in whistleblowing before you make a disclosure. You must know your rights before you “blow the whistle,” so you can ensure that your conduct will be protected.
Can the whistleblower attorneys working at Kohn, Kohn and Colapinto help me?
The whistleblower law firm of Kohn, Kohn and Colapinto has a straightforward intake process. It is available here. Every intake is confidential, and the information provided protected under the attorney-client privilege. A senior partner at Kohn, Kohn and Colapinto reads each intake submission.
The intake process is free of charge.
Unfortunately, KKC receives many more requests for assistance then it can handle and must turn away many qualified whistleblowers. If KKC cannot represent you, you still may have a solid case.
If KKC believes you may have a case with which it can help you, you will receive a follow-up call or email to obtain more information and determine whether or not our firm can represent you. Until you have a signed written agreement with the firm, we are not your attorneys (although all of the information you provide to us is privileged and confidential). Almost all of our cases are on a contingency fee basis.