Note: this article, written by our Legal Director Tom Devine and our National Security Analyst Irvin McCullough, was originally published here.
Know Your Rights: Conversations with Congress
Secretary of State Mike Pompeo is asserting that Congress is exceeding its authority and trying to bully State Department employees by requesting their testimony about alleged White House and State Department misconduct. His intransigence not only threatens to topple our constitutional system of checks and balances, but it attempts to nullify a basic right federal employees have enjoyed for over a century: the right to communicate with Congress free from intimidation, bullying and unfair harassment.
The Lloyd-La Follette Act of 1912, which granted federal employees this right, reads in relevant part:
The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.
As one of the first statutes enacted specifically to protect federal whistleblowers, the Lloyd-La Follette Act was passed, according to its accompanying House Report, “to protect employees against oppression and in the right of free speech and the right to consult their representatives.” This was especially pertinent in its time, as Presidents Theodore Roosevelt and William Taft had issued executive orders gagging federal employees from communicating with Congress, and punishing violators with termination.
This right applies to all State Department employees, current and former, who wish to testify before congressional committees. They can freely cite the Lloyd-La Follette Act and their First Amendment right to freedom of speech when appearing before the committees. Further, the Whistleblower Protection Act of 1989 shields them for making unclassified disclosures to Congress. Despite cumbersome, unreliable procedures, the Intelligence Community Whistleblower Protection Act of 1998 permits classified disclosures to congressional intelligence committees, though the regulations governing that process vary across agencies.
In response to the introduction of a government-wide nondisclosure agreement employees must sign as a precondition to obtain a security clearance, Congress has passed an anti-gag appropriations rider since 1988 that outlaws any spending that will gag employees from communicating with Congress, as one of us wrote about last year. Indeed, another rider allows Congress to cut off the salary of offending officials, as we both discussed earlier this year.
Employees can enforce these rights by filing a complaint with the United States Office of Special Counsel, a small government agency dedicated to federal whistleblower protection, either to challenge the gags or any punishment for congressional communications. If any punishment they receive is greater than a two-week suspension, they can fight back through an administrative due process hearing at the Merit Systems Protection Board. If they blew the whistle to Congress, they can get a hearing against any retaliation. A legally protected whistleblowing disclosure, outside the Intelligence Community, is when the employee communicates information that they reasonably believe shows illegality, gross waste, gross mismanagement, abuse of authority or a substantial and specific danger to public health or safety.
Who will use this right?
There are three types of witnesses who may have relevant information to provide the congressional committees as lawmakers conduct their impeachment inquiry: cooperative witnesses, so-called “involuntary whistleblowers,” and potential whistleblowers seeking to report wrongdoing.
Five individuals scheduled for depositions before the congressional committees are either cooperative witnesses or involuntary whistleblowers. The cooperative witnesses, as reported by the Wall Street Journal, are former Ambassadors Marie Yovanovitch and Kurt Volker. Those signaling that they refuse to cooperate, whom Congress may compel to testify as involuntary whistleblowers, are three current senior State Department employees.
Cooperative witnesses, especially when they are former employees, stand on firm legal ground to approach congressional committees with testimony relevant to the committees’ oversight mission. While they should try to contain their testimony to unclassified material, they can request that a segment of their interview take place inside a Sensitive Compartmented Information Facility (SCIF) where they could discuss classified information.
This will assuredly peak the interest of agency attorneys, however, and may provide a hook for a modicum of agency control over their testimony. Classified information may be shared with Congress under agency policy, but these policies vary throughout government. If the classified information involves specific kinds of wrongdoing, it is possible to make an urgent concern disclosure to the Intelligence Community Inspector General (ICIG) in hopes that the ICIG transmits the disclosure to the congressional intelligence committees, who will then have greater control over that information. This is what the whistleblower behind the Ukraine story tried to do, but his complaint hit an unprecedented roadblock: The ICIG was blocked from passing it to Congress despite finding it to be credible and meeting the legal definition of an urgent concern.
Separately, potential whistleblowers may decide to contact committee staff as they conduct their investigation. Like cooperative witnesses, they are all strong legal ground to do so if they have a reasonable belief that their disclosure evidences the misconduct discussed above.
How to do it:
How should these whistleblowers do this effectively? Here are our suggestions from working with clients like these at the Government Accountability Project:
- Have a seasoned lawyer who can negotiate your rights, such as confidentiality, before supplying Congress anything.
- Condense facts to a one- or two-page sheet that can be shared with congressional staffers.
- Make an index of available documents to share and their significance. Identify documents for Congress to request from agencies, and where they can be found. Demystify all technical jargon in the documents you provide.
- Identify witnesses the committees should question, and suggest specific topic areas relevant to the committees’ investigations.
- Predict any bad faith answers by agency officials, and supply the rebuttal information to call their bluffs.
Whistleblowers and the information they disclose are the life-blood of our system of constitutional checks and balances. But their vital role means there is an equally strong imperative to silence or discredit them by those threatened by their truth-telling. They should prepare as if it were the most important test of their professional lives. Because it will be.