Whistleblower retaliation: Stop confusing unlawful attacks with politics

President Trump has made repeated indefensible, harassing and unlawful attacks against numerous whistleblowers. For months, Trump has led an anti-whistleblower Twitter chorus line that has been joined by his son Donald Trump, Jr. and numerous members of Congress. Make no mistake about it: This is not politics. This is retaliation.

These attacks, and removals from positions and responsibilities in government, have jeopardized the lives and disrupted the careers of dedicated public servants. The casualties are piling up; so are the violations of law.

Thus far these include the Privacy Act, the Inspector General Act, the Intelligence Whistleblower Protection Act and the Whistleblower Protection Act. Congress also failed to recognize throughout the House and Senate impeachment proceedings that Trump and those making the retaliatory attacks against whistleblowers have also violated 18 U.S.C. 1505, the statutory provision that is a felony coupled with five years of imprisonment. It applies to anyone who engages in communications that “endeavor to influence, obstruct, or impede any inquiry or investigation being had by either House, or any committee of either House or any joint committee of the Congress.” 

Let’s be clear. It is retaliation for the president or members of Congress to attack intelligence agency whistleblowers and divulge the identity of anyone who has made protected disclosures to their agency inspector general. It is whistleblower retaliation to openly attack any government employees, such as those who also courageously testified or provided evidence of the misconduct and abuse of the office of the president by Donald Trump.

Trump’s and Republicans’ attacks on whistleblowers are designed to undermine the credibility and value of whistleblower disclosures made to Congress as well as to inspectors general. However, the House is now in the process of establishing a whistleblower ombudsman office, and since 2012, inspectors general have been required to maintain an office of whistleblower ombudsman.  

In July 2019, “Whistleblowing Works: How Inspectors General Respond To Protect Whistleblowers” was issued by the Council on Inspectors General for Integrity and Efficiency. The “Whistleblowing Works” report highlights just some of the hundreds of whistleblower disclosures made annually to inspectors general that initiate or advance investigations, audits and reviews in agencies across government. These include the Department of Veterans Affairs’ continued retaliation and abuses related to health care access; the Department of the Interior and Environmental Protection Agency’s illegal use of funds for office and personal expenses by Trump appointed agency heads; the Department of Treasury’s interference with formal investigations regarding Trump’s tax records; and, most recently, the National Archives and Records Administration’s (NARA) censorship committed by editing and blurring exhibit photographs of anti-Trump signs carried at the 2017 Women’s March held in Washington, D.C.

It is no surprise that in January, Transparency International again lowered the Global Corruption Index for the United States to 23rd in the world. There is a direct link between the rise in whistleblower allegations to inspectors general during the Trump administration and the falling rank of the U.S. on the Transparency International’s Global Index for Corruption.

Even more insidious and harmful to our government is the behind-the-scenes blockade by Senate Majority Leader Mitch McConnell (R-Ky.) in tandem with Sen. Ron Johnson (R-Wis.), who chairs the Committee on Homeland Security and Governmental Affairs. They are successfully dismantling and disabling the federal agencies that investigate and adjudicate whistleblower retaliation cases.

Since January 2015, McConnell and Johnson have blocked all new nominees to the U.S. Merit Systems Protection Board (MSPB), the agency that adjudicates government whistleblower cases.  As of March 1, 2020, the three-person bipartisan board required by law will have been vacant for an entire year. The result is that as of January 31, 2020 the total number of MSPB cases that are backlogged has risen to 2,586 appeals of which 662 are whistleblower cases. 

Congress must stop confusing whistleblower retaliation with politics and return to its bipartisan tradition of strengthening whistleblower protection. The Senate must confirm a quorum of nominees to the Merit Systems Protection Board before March 1, 2020 and ensure that nominees are well qualified and are protective of merit principles. No nominee can epitomize the political spoils system that the MSPB was established to halt.  

Steven L. Katz served as chief counsel to the U.S. Merit Systems Protection Board and as counsel to the U.S. Senate Committee on Governmental Affairs.