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The Role of the Whistleblower

This is a new installment in our Trends in the Law series.

THE WHISTLE IS BLOWN

There has been a lot in the news lately about Whistleblowers. But what exactly are they and what purpose do they serve?

As the name suggests, whistleblowers are people who discover illegality and then “blow the whistle” on it by reporting it either to upper-level management, an appropriate government agency or law enforcement. Exposing crime and corruption can obviously have repercussions, and many whistleblowers prefer to remain anonymous for fear of retaliation in their workplace or worse.

The Whistleblower Act of 1989, 5 U.S.C. 2302(b)(8)-(9) protects whistleblowers who work for the government and report the possible existence of an activity constituting a violation of law, rules or regulations, or mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health and safety. A federal agency violates the act if the agency authorities take or threaten to take retaliatory personnel action due to disclosure. Such retaliation can take the form of harassment, threats of firing, blocking of promotions, forced job transfers, formal reprimands, and legal actions.

The Whistleblower Enhancement Act of 2011 specified certain additional types of disclosures of information by federal employees that are protected.

IT’S COMPLICATED

The protection afforded by the Act gets complicated, however, when the whistleblower has reported illegal conduct allegedly committed by the Executive Branch to Congress. As has so often been the case during the Trump Administration, a battle between co-equal branches of government is playing out before our eyes. Furthermore, the Executive Branch is arguably violating the Act by taking or threatening to take retaliatory action against the whistleblower with statements that characterize him or her as a “spy” and recommend that he or she be “dealt with as spies used to be dealt with”—in other words imprisoned or executed.

In addition to threatening retaliation, the Executive Branch (President Trump and other members of the Executive Branch that include the Secretary of State and the Attorney General) is attempting to erode one of the core principles of the Whistleblower Protection Act and its protections: namely, that the whistleblower can remain anonymous if they need or desire to do so. President Trump and his surrogates keep asserting that he has a “right to confront his accuser.” This is a misplaced argument and if accepted, would have terrible consequences for society.

THE RIGHT TO REMAIN…ANONYMOUS

The right to confront one’s accuser attaches in a criminal context. Impeachment is not a criminal proceeding; it is a process set out in Article II, Section 4 of the U.S. Constitution. It provides for Congress to remove from office the president, vice president, and all civil officers of the U.S. for “treason, bribery or other high crimes and misdemeanors.” Under Article I, Section 2 of the Constitution, the House of Representatives has the “sole power of impeachment.” In sum, only the House can pass a resolution of impeachment alleging that a president has committed high crimes and misdemeanors. If the House passes such a resolution, then the process moves to the Senate, which under Article I, Section 3 of the Constitution has the “sole power to try all impeachments.” Even if the Senate holds a trial, and even if there is a conviction, it is not a criminal conviction. The Constitution states that impeachment “shall not extend further than to removal from Office and disqualification to hold and enjoy any Office of honor, trust or profit under the United States.”

Therefore, President Trump is attempting to force the disclosure of the whistleblower’s identity by asserting a right that attaches to a criminal defendant in the context of his civil impeachment inquiry. Not only is this attempt a blatantly inapposite argument, it is one that would set a dangerous precedent. Forcing a whistleblower to reveal his/her identity under threat of retaliation and threats to his/her safety constitutes witness intimidation—of the whistleblower if he or she is willing to testify in a closed hearing before the intelligence committee, of those willing to testify to corroborate facts in the whistleblower’s complaint and to future whistleblowers. This witness intimidation would chill future would-be whistleblowers, which ultimately would mean fewer checks on illegal and corrupt behavior.

THE ROLE OF THE WHISTLEBLOWER

Whistleblowers serve an important function in society. They expose illegal and unethical behavior, often at great risk to themselves. Oftentimes, the corruption they reveal is systemic, and their revelations uncover widespread abuses of power within an organization or agency. Sometimes, one disclosure leads to the discovery of a pattern of illegality and corruption that would never have come to light but for the initial disclosure. Again, the present whistleblower complaint is illustrative: President Trump’s phone call with the Ukrainian President led to the discovery of other similar phone calls, such as one with the Australian President. Whistleblowers’ information can lead to legal actions that provide victims with the compensation that they need and deserve. But whistleblowers will not be able to provide this essential role if the protections afforded to them are not preserved and enforced.

CONTACT YOUR ATTORNEY

If you have information about suspected illegal activity in your workplace, contact Dave Thomas at The Thomas Law Firm for a free consultation regarding your legal rights and options.

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