Note: this article, featuring our client Robert MacLean and our Legal Director Tom Devine, was originally published here.
Trump Wants the Whistleblower Revealed. Others Push for More Protection.
It should be explicitly illegal for any federal employee “to actively seek and/or reveal the identity of a whistleblower who has requested anonymity,” John Palguta, who spent almost 34 years with the Merit Systems Protection Board and the Office of Personnel Management, said by email. “There is no purpose served, other than intimidation and obfuscation, in the current calls for the public identification of the whistleblower.”
There are laws prohibiting retaliation against federal whistleblowers, but that has not stopped reprisals.
No retaliation has been as frightening as the veiled threat Trump issued to the Ukraine whistleblower in September. “You know what we used to do in the old days … with spies and treason,” he said, referring to the death penalty.
That might be considered harmless Trump bluster, but not if you are a whistleblower who has already suffered retribution. When I asked Robert MacLean, who won the first federal whistleblower case before the Supreme Court in 2015, what impact remarks by Trump and his allies could have on current and potential whistleblowers, the usually open former air marshal demurred.
“I’m already on welfare, and Uber to keep a roof over my children,” said MacLean, who is still fighting to get his job back. “I’m too scared to honestly answer your question.” Despite his high court victory, MacLean’s attempt to continue his federal law enforcement career has been blocked by Transportation Department legal moves.
MacLean’s reluctance is understandable. Criticism of a specific whistleblower by the most powerful person in the world, and calls for exposure of that person’s identity, are serious matters felt across the workforce.
“It is beyond credible disagreement that exposing the anonymous whistleblower will have a chilling effect on others who want to defend the law but are afraid of retaliation,” said Tom Devine, legal director of the Government Accountability Project, in a statement. “The President’s exposure campaign attempts to influence proceedings, by scaring off witnesses whose testimony challenges the President’s actions.”
That campaign, he added, “seeks to erase a first principle sacred in all whistleblower laws — the right to provide evidence anonymously, so retaliation is not possible.”
The White House did not respond to a request for comment.
There are laws protecting whistleblowers against retaliation, but “the ability to enforce these laws is very weak,” said Stephen M. Kohn, a lawyer who has represented them for 35 years and a co-founder of the National Whistleblower Center.
In June, Devine sent congressional staffers a series of proposals to strengthen the laws. A major weakness, according to Devine and other whistleblower advocates, is the inability of federal whistleblowers to seek jury trials against those accused of retaliation.
Most federal whistleblowers can take cases to the Merit Systems Protection Board, which serves as a personnel court for federal employees, but it “does not have the resources for complex cases with national public policy significance,” according to his memorandum.
Subjecting a whistleblower to a bogus, reprisal probe is another tactic that should be prohibited.
Because laws protecting whistleblowers have made it harder to fire them, “the most common retaliation tactic has been opening a retaliatory investigation followed by an offer to resign or face criminal prosecution,” Devine said. “No matter how outlandish the pretext, the prospects of criminal trial are so terrifying that the chilling effect may have net increased.”
Devine and others also would like Congress to increase the ability of whistleblowers to obtain temporary suspension of retaliatory disciplinary actions while their cases are pending. The inability to obtain temporary relief from those actions “has made the (whistleblower protection) law dysfunctional even for those who win,” Devine wrote, because they cannot wait for years to have their cases resolved.
Adding up the various shortcomings in the current law, Devine’s memo concluded that federal employees, compared to private sector employees, “have the nation’s weakest due process options to enforce their whistleblower rights, although they have the most significant duties to the public.”
The Ukraine whistleblower reportedly is an employee of the CIA, which is part of the intelligence community. Intelligence staffers have different whistleblower protections than other federal workers. Most feds can seek retaliation protection from the Merit Board and the Office of Special Counsel. Intelligence whistleblowers don’t have those options, Kohn explained, adding that they “are dependent on the president to protect their rights.”
That makes Trump’s statements even more alarming.
Yet his comments and those from his supporters who want to reveal the Ukraine whistleblower’s identity have what Danielle Brian, executive director of the Project on Government Oversight, considers a silver lining.
The controversy, she said, “has heightened awareness across the country of the plight of whistleblowers, the dangers they still are exposed to and the need to reform the laws so that they are more adequately protecting” those who expose misconduct.
It’s a silver lining that comes at a stiff price.