Know Your Rights: Whistleblowers and the January 6th Select Committee
This op-ed was written by our Legal Director Tom Devine and Deputy Legal Director Irvin McCullough and was originally published here.
On July 27, the House of Representative’s Select Committee to Investigate the January 6th Attack will hold its first formal hearing, publicly embarking on its fact-finding mission. Its members will hear from two U.S. Capitol Police and two Metropolitan Police Department officers who were on the ground during the siege. Other potential witnesses, ranging from Pentagon personnel to federal law enforcement officers, may soon feel compelled to bear witness to the Select Committee either publicly or privately.
The free flow of information through witness and whistleblower testimony is the lifeblood of any congressional investigation. Two years ago, we wrote a primer on whistleblowing protection and congressional communications for potential witnesses to use when considering stepping forward. Now we’re writing again to reiterate a basic right federal employees have enjoyed for over a century—the right to communicate with Congress free from intimidation, bullying and unfair harassment—and to apply it to would-be whistleblowers considering making disclosures to the Select Committee.
This right was originally outlined in the Lloyd-La Follette Act of 1912, which 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.
Congress even legislated some controls, through anti-gag order provisions passed through both the Whistleblower Protection Enhancement Act of 2012 and appropriations laws since 1988, to ensure the executive branch could not bar its workforce from contacting entities exactly like the Select Committee. These anti-gag provisions are enforced by the Office of Special Counsel, an independent federal agency responsible for whistleblower protection, and even allow for Congress to strip the salary of any executive branch official who tries to enforce an unlawful gag order restricting communications with Congress.
However, the Lloyd-La Follette Act covers only federal workers in the executive branch. Many potential witnesses, including those four testifying on July 27, are defenseless. And the 1912 law does not contain any enforcement provisions for its rights to be more than rhetoric. The legal system relies on other mechanisms such as the salary-stripping one described above and the Office of Special Counsel and Inspectors General to achieve compliance.
Thankfully, the Whistleblower Protection Improvement Act, introduced this year by Congresswoman Carolyn Maloney, would add much-needed teeth; as would Senator Dianne Feinstein’s paradigm-shifting Congressional Whistleblower Protection Act introduced last year. Both would protect the freedom to speak with Congress with an option for jury trials in federal court to adjudicate complaints of retaliation.
In the meantime, witnesses should learn their rights under generic whistleblower laws that may apply. Most of the Select Committees’ potential witnesses are protected by federal whistleblowing laws. Others may be protected by state or local statutes. Others still may be entirely left in the cold. Before taking risks, the first step is to contact an experienced whistleblowing attorney who can navigate the legal lay of the land—which laws apply if any, the associated risks, and strategies to maximize results and minimize retaliation. Many attorneys will represent whistleblowers without a fee (pro bono).
As an example of how the legal system works, federal employees enjoy the right to communicate with Congress free from retaliation. And different categories of employees can enforce this right through different whistleblowing statutes. Just as whistleblowers are protected for assisting four Inspector Generals’ investigations—from the Department of Interior (DOI), the Department of Justice (DOJ), the Department of Defense (DOD), and the Department of Homeland Security (DHS)—investigation their departments’ activities on January 6, these workers can also make protected disclosures to Congress as witnesses, though some (e.g., DOD and DHS intelligence workers) must use statutorily specified channels.
U.S. Park Police from the DOI’s National Park Service are Title 5 employees shielded from retaliation through the Whistleblower Protection Act. They can make disclosures directly to the Select Committee and challenge any reprisal they may face.
Federal Bureau of Investigation (FBI) employees were given token rights in Section 2303 of the Civil Service Reform Act of 1978, modernized a touch through the FBI Whistleblower Protection Enhancement Act of 2016 (WPEA). But FBI whistleblowers’ legal rights and protections are some of the weakest across the federal government. What could have been tremendous reforms through the FBI WPEA as it was introduced were whittled down to a sliver after objections from the DOJ and Intelligence Community that would have otherwise prohibited its passage. Section 2303 does protect disclosures “of information made as described in section 7211,” the Lloyd La-Follette Act.
Most DOD Title 5 civilian employees enjoy anti-retaliation protections through the Whistleblower Protection Act, while Title 10 servicemembers enjoy anti-retaliation protections through the Military Whistleblower Protection Act. Both can make protected disclosures to Congress. However, Title 50 intelligence employees must make protected disclosures to Congress using the process outlined in the Intelligence Community Whistleblowing Protection Act (ICWPA), extensively explained by our colleague Kel McClanahan, and are protected from retaliation pursuant to a patchwork of policies and statutes. Similarly, the DHS workforce includes employees from Titles 5, 10, and 50.
Additionally, almost all federal contractors outside the Intelligence Community are protected from whistleblowing retaliation under Title 10 and Title 41 of the United States Code, in Sections 2409 and 4712 respectively. These provisions protect federal contractors for making disclosures to a number of audiences, including Congress. Intelligence Community contractors were enfolded into the same system protecting their civil service peers through Section 110 of the FISA Amendments Reauthorization Act of 2017, and may make disclosures to Congress through the ICWPA process. Section 110 also granted limited protections to FBI contractors—who had been carved out from other contractor whistleblowing laws—but these protections do not cover congressional communications.
Other than federal workers, local law enforcement witnesses may want to approach the Select Committee, like the two District of Columbia Metropolitan Police Department officers who are testifying on July 27. These officers are protected from retaliation by the District of Columbia Whistleblower Protection Act, a respected municipal statute. But almost no other states have followed suit: most law enforcement officers lack effective whistleblowing rights and protections. Earlier this year, 174 nongovernmental organizations and over 33 law enforcement whistleblowers sent letters to Congress seeking a legislative fix.
The role of U.S. Capitol Police officers illustrates the loophole for those to receive justice who need it most. These officers risked their lives to defend the Capitol on January 6. Two more are risking their livelihoods by testifying before the Select Committee without a legal safety net. Congress has consistently refused to grant legislative employees whistleblowing protections—and this refusal extends to those who protect the institution and its members.
We hope the Select Committee will conduct a comprehensive fact-finding mission. But to leave no stone unturned, the Select Committee will need witness and whistleblower testimony. Thankfully, many potential witnesses are protected from retaliation. And existing laws have facilitated some of the most important testimony for congressional investigators in recent times. Horrifically, some potential witnesses with the highest-stakes testimony are not protected by statute from retaliation, despite Congress’ ability to legislate these protections.