James Kidney started as an attorney at the Security Exchange Commission (SEC) in 1986. On his first day, he was given a single-spaced 48-page action memo filled with complaints that needed to be investigated. He didnt have an office, so he was given a cart for his files. The cart steadily filled up as he investigated each complaint. At Kidneys retirement speech in 2014, he told his coworkers and friends about his first case, his cart, and his frustration with bureaucracy. He joked that he soon found out the excessive list of complaints was the norm and he should have retired when his cart did. His description of the SEC illustrates this frustration: an agency that polices broken windows on the street level, and rarely goes to the penthouse floors. On the rare occasions when enforcement does go to the penthouse, good manners are paramount.
In the wake of the 2008 financial crash, Kidney was designated as the trial attorney on the Goldman Sachs investigation. Working on the case in 2009, Kidney pushed his colleagues and superiors to prosecute executives instead of a low-level employee; his plea was denied in March of 2010, and he was offered a lesser role on the case. Following the $550 million Goldman Sachs settlement, Kidney was disheartened by the way the case was used as a template for other settlements. He wrote an anonymous letter to The New York Times in 2011, a map using public documents to lay out the SEC revolving door problem and the weak prosecution standard implemented by executives, but nothing came of it. No story was published until Bloomberg did a piece on his retirement speech in 2014. Kidneys speech was not written for circulation, but his humor and critical comments inspired coverage. When the story was quoted, it was taken out of context so Kidney did follow up interviews. He explained he respected both his colleagues and the SEC as an agency, but he was frustrated with executives and the conflicts of interest that inevitably surface in the highest levels of government. It wasnt until 2016, in an article published by The New Yorker and ProPublica, that the whole story surfaced. On the same day, Kidney released his own article explaining his decision to blow the whistle externally. It took five years, retirement, and a rousing speech for Kidneys frustration to come out and it took two more years for the whole story to be told. This timeline is not abnormal for whistleblowers.
Saturday, September 29, Kidney shared his story at the Society for Professional Journalists annual conference: Excellence in Journalism 2018. Government Accountability Project Director of Education Dana Gold and Pulitzer-prize winning journalist James Risen joined Kidney in a breakout session titled Shooting the Messenger: The Whistleblower Project. Danielle McLean, the Chairperson of SPJs Freedom of Information Committee, introduced the session by speaking about The Whistleblower Project, a robust online resource with articles written by journalists and whistleblower experts. McLean collaborated with Gold at the Government Accountability Project to produce this resource and emphasized how the relationship between journalists and whistleblowers is necessary to protecting free speech.
Gold followed McLean by drawing on her years of experience as a whistleblower attorney. She explained how journalists can offer insulation to whistleblowers and garner public support for their causes. However, she also referenced the risks faced by whistleblowers who go to the press. Since the vast majority of whistleblowers report internally first, maintaining a whistleblowers anonymity can be difficult, and often impossible to guarantee. Going public can render whistleblowers vulnerable to retaliation in the workplace, and public smear campaigns can destroy relationships with coworkers, friends, and family members. To help journalists understand these risks and the complicated patchwork of laws that protect whistleblowers, Gold developed Working With Whistleblowers: A Guide for Journalists, and shared this important resource with the SPJ audience. The guide discusses the benefits of collaboration between whistleblower organizations and journalists as well as providing practical advice about legal rights, source protection, and other best practices.
When Risen spoke about his experiences working with whistleblowers, he validated Golds remarks on internal disclosures. By the time whistleblowers approach a journalist they often have either tried unsuccessfully to raise issues internally, or have realized their concerns will fall on deaf ears and be met with hostility because their disclosures challenge policies and practices implemented by those in positions of authority. He also shared his experiences working with whistleblowers who want to remain anonymous, referencing the wide array of technology, such as Signal, to facilitate encrypted communication, which was formerly cumbersome and difficult. However, Risen also noted that given the enormous power the government has to surveil electronic communications, old school tactics such as meeting in person can often be the best practice.
Risen, Gold, and McLean all spoke about the fear whistleblowers have of going public; Kidney confirmed this with his own experience having reached out anonymously to The New York Times. Three years after his retirement, Kidney revealed his identity and sent the same letter again, hoping journalists might pursue the issue of weak and selective SEC enforcement. Although he was told his original letter had been sent to the wrong address,The New York Times never published a story about Kidneys specific disclosures.
Kidneys case is a perfect example of why whistleblowers need the support of watchdog organizations, like the Government Accountability Project, and journalists. Kidney saw problems at the SEC and acted as any ethical employee would: by raising concerns with his supervisors. He was, for good reason, hesitant about publicly criticizing his employer, but Kidney was a whistleblower long before the media cited his fiery retirement speech. The Government Accountability Project helps employees like Kidney by providing the support they need to stand up to organizations and effect change. Beyond supplying legal counsel to protect whistleblowers from retaliation, the Government Accountability Project also works with journalists to leverage disclosures with public campaigns. Together journalists and watchdog organizations are essential to protecting whistleblowers and ensuring their disclosures hold institutions accountable. Together they stand firm in their commitment to the freedom of speech because, as Gold says, truth is the lifeblood of democracy.