Federal Employees News Digest

Expert: Whistleblower protection is law with deep roots—and must not be weakened

Late last month, news broke that an unidentified federal employee had acted as a whistleblower in a high-profile case. The employee disclosed to the Intelligence Community Inspector General information that the White House, in a July phone call, had pressured a foreign leader—the president of Ukraine—to help investigate the U.S. president’s top political rival. Multiple news organizations reported that, as part of the allegedly coercive call, the White House may have stalled a crucial military sale to Ukraine, defying an act of Congress. The White House has since repeatedly denied any illegal quid pro quo in the phone call, or in any other circumstance. But with news of a second whistleblower backing the first one’s claims, the Democratic House of Representatives is moving ahead with an impeachment inquiry focusing on the matter—which, if it occurred as reported, would be illegal and potentially impeachable. The impeachment process appears to be gathering steam—and most observers see it inevitably intensifying over the coming months. This week in FEND, Nathan Abse interviews Kenneth Warren, professor of political science—and an expert on whistleblower law and impeachment—at St. Louis University in Missouri.

Q&A with Kenneth Warren

The whistleblower in the current, Ukraine phone call case—who kicked off the impeachment inquiry—had a legitimate, and “urgent,” concern, according to the IG, right?

Warren: That’s right. The inspector general found that the whistleblower is a legitimate whistleblower, and that the concerns presented were valid and urgent.

The aim of whistleblower protection law is to protect such people from retaliation—as well as to to direct them to a responsible contact outside the usual chain of command—to an inspector general, or responsible lawmakers, or the like—right?

Warren: That is correct. That way, their disclosed information can be reviewed and used properly. And, also, the whistleblower can get protection. The protections here include that they cannot legally be fired—or transferred, or punished or abused in any way—as retaliation for making the whistleblower disclosure.

We should state the president denies the whistleblower’s allegations about his Ukraine phone call. But he also seems to reject the spirit of whistleblower law—calling the whistleblower a “spy” and saying he wants their identity. This undermines the Intelligence Community Whistleblower Protection Act, and whistleblower protections for the wider federal workforce?

Warren: What the administration is doing and claiming here is, historically speaking, totally outrageous. Federal employees acting as whistleblowers, under the law, are supposed to be guaranteed specific protections. The president should not be asking about the identity—or all this pushing back here. What’s most scary about this situation and the way the White House is acting here is this: Whistleblowers, in the future, will be afraid to come forward.

That seems very possible, since under the law, legitimate whistleblowers merit protection, but instead here the loudest voice in the country is calling them a lawbreaker. Let’s go back in time—can you tell us how whistleblower protections evolved in the federal government?

Warren: The history of the whistleblower acts is long. Now, you can trace the origins of contemporary whistleblower protections to the late 1960s, when [Arthur Ernest] Fitzgerald and other whistleblowers involved in the C-5 Air Force cargo plane program exposed that it was going to hit huge cost overruns. Fitzgerald was a federal employee—a manager in the Air Force. He discovered—and disclosed—these financial control problems that were being kept secret in the program. When he blew the whistle, it was on others who were actually lying to Congress. He disclosed that backers of the program were trying to advance it using false information. This was a massive fraud—it was going to cost around twice as much as the Air Force was claiming.

To return to the present, the current whistleblower went through proper channels, to the IG, who analyzed the claim and found merit in it, right? So, again, why is the president demanding an identity and throwing around the word “spy”—this bullying can’t be helpful for the future?

Warren: What does it mean? I don’t know. The president’s allegations—including that the whistleblower is a “spy”—are absurd, of course. It’s farcical.

Yet the White House, along with some media outlets, are advancing that theory and succeeding in damaging the whistleblower and the whole process, right?

Warren: Yes, for many people the whistleblower has been successfully smeared, damaged. But,  many others—and, I think, the majority here—no, the whistleblower has not been diminished. Those who see the whistleblower as not being legitimate, well many of these people are in the president’s base and may believe anything that he says. The stories being spun here make no sense. You would have to work very hard at being unsophisticated to believe any of this stuff that’s being made up. The “evidence” is fabricated documents and the like. We live in very dangerous times.

But people often reject good evidence for bad—so how are we in especially dangerous times?

Warren: Because, as I see the current reaction in Congress, now there are so many lawmakers and politicians who have no respect for the rule of law. That was simply not true, for example, back when there was the impeachment process around Watergate. Because, ultimately, back then both Democrats and most Republicans came to see that the president had done wrong. I am not seeing that shaping up now. We have politics at its worst now. There is just no statesmanship among many [in power] around these very serious issues.

So, in the late 1960s and the C-5 cargo plane program—as in so many other situations since—the whistleblower’s disclosure saved the public billions, right?

Warren: Yes—that’s part of why we need whistleblowers. What scholars of public administration—including myself—have recognized is that whistleblowers actually serve the public. They protect the public from misspending—and corruption. Since the C-5 case, there have of course been other instances of multi-billion dollar savings because of the brave actions of whistleblowers. Many were federal employees, such as Fitzgerald. Others, though involved in federal programs, were private contractors—who don’t have the same legal protections. In that category, for example we have Karen Silkwood, who worked for the nuclear contractor Kerr-McGee in Oklahoma, back in the early 1970s—there’s a movie on this, you and your readers may have heard about it or seen it. In any case, whistleblowers are insiders, with privileged positions in terms of what they know—and they risk a lot for the greater good by coming forward. Ultimately our federal whistleblower protection laws were passed and maintained in recognition of this public good. When you have legitimate whistleblowers—whether from the public sector, civil servants, or the private sector as in contractors—we all benefit from the financial savings and other public good they provide. These laws were passed to protect whistleblowers, so that they can come forward.

With respect to the current whistleblower’s allegations, or other alleged wrongdoing by the administration, and impeachment—where are we right now?

Warren: Well, for now, the president has many defenders. The defenders of the president are defending some of his more outrageous comments. Like that the whistleblower is a spy. The president, very pointedly, has gone beyond the phone call that the whistleblower blew the whistle on, and has publically asked China to investigate a leading Democratic candidate. His defenders are putting all kinds of spin on that remark. It might be true, as some Republicans have said in his defense, that the president wasn’t serious when he said that. Maybe. But the point is, a president should never talk like that. It is reckless at best. There’s no spin for this. Even president Nixon had more respect for the law, in my opinion. That president did things like this in secret. This president does it in front of the camera. As for why you have any elected officials defending that kind of behavior, I do not understand it—even with all my experience and study—because it is totally not understandable. I get it that they are afraid of losing seats—their leader is popular with a base. But they are throwing away any statesmanship here, it’s all partisan politics when you behave like this. This is an assault on separation of powers and checks and balances as we know them, on the Constitution itself. As a person who knows the system and has respect for the rule of law, I am in total disbelief of what is going on at this point. The president is not given this kind of power, not under our Constitution.

Can you summarize the White House strategy?

Warren: The president and his lawyers have taken the stand that they are not going to turn over anything or let anyone testify. That is a blatant obstruction of justice. It is not executive privilege. Nixon did not get away with it. I do not think this White House should either. On another level, if you watch the polls, the public’s support for an impeachment inquiry has skyrocketed. This is not going away.

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Contributors

Edward A. Zurndorfer Certified Financial Planner
Mike Causey Columnist
Tom Fox VP for Leadership and Innovation, Partnership for Public Service
Mathew B. Tully Legal Analyst

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