Whistleblowing: A Foundation of the Republic
In a town known for gossip, intrigue, and constant leaks, Washington in recent months has managed to keep two secrets: who is the anonymous Trump administration official who wrote A Warning, the scathing insider account of White House operations, and who is the whistleblower at the center of the House impeachment proceedings?
Despite President Donald Trump’s pleas for the whistleblower’s identity to be revealed – and his demand that he be given the opportunity to “interview” them – it should come as little surprise that it has largely remained under wraps. As PBS Newshour recently reported, while there is “nothing that can block Trump from revealing who” the whistleblower is, federal law is meant to prevent “intimidation of witnesses and reprisals against whistleblowers.” The president, of course, is tasked with enforcing these, and all, laws as the leader of the executive branch.
Add to that the fact that Americans respect their whistleblowers and have a long history of protecting them.
The Whistleblower Protection Act (WPA), signed in April 1989 by President George H.W. Bush, is the law most frequently cited in today’s news. It is only 30 years old, but, as a recent History Channel article reminded readers, “The U.S. government has long made protecting whistleblowers a priority.” In fact, protecting whistleblowers is an American tenet that actually predates the Constitution.
The Continental Congress passed the first law shielding whistleblowers during the American Revolution. It was intended to protect 10 naval officers who documented abuses by Commodore Esek Hopkins, then the commander in chief of the Continental Navy. In a petition to Congress, the officers had alleged Hopkins was “guilty of such crimes as render him quite unfit for the public department he now occupies.” The officers also said they worried Hopkins’ behavior would have a chilling effect on soldiers joining the cause for independence.
Federal lawmakers listened to the whistleblowers and fired Hopkins, but that hardly was the end of the story. Hopkins wanted revenge. After he was relieved of his duties, Hopkins filed a criminal libel suit against his former charges. Two were jailed and appealed to the Continental Congress, which came to their aid, passing a resolution in July 1778 that said, “It is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.” Through this act, Congress first asserted the importance of whistleblower protections nearly 250 years ago.
Flash forward nearly a century. In 1863, Congress passed a law that went a step even further: encouraging whistleblowing. The False Claims Act asked private citizens to bring lawsuits on behalf of the federal government against companies or individuals who might be defrauding the government. This statute allows citizens to benefit financially from blowing the whistle. As the History Channel explains, “If a court ruled against the contractor, the whistleblower was entitled to half of the damages won by the government.” The law is still in effect today and, according to one law firm, whistleblowers recovered over $326 million in 2018 alone under the Civil War-era law.
Congress established whistleblower rights and protections in the modern era through the Civil Service Reform Act of 1978. As The New York Times explains, this law “forbids interfering with or denying federal employees a right to furnish information to lawmakers.” The Inspector General Act also was passed in 1978. It “prohibits officials from threatening the jobs of or making other reprisals against federal employees who complain or disclose information to an inspector general in good faith.”
As noted above, the Whistleblower Protection Act was passed in 1989. It was meant to strengthen and improve protection for whistleblowers. Specifically, under the WPA “certain federal employees may not take or fail to take, or threaten to take or fail to take any personnel action against an employee or applicant for employment because of the employee or applicant’s protected whistleblowing.”
Importantly in the current context, as originally written and due to concerns about the release of classified data, the WPA did not apply to intelligence officers or any federal employee engaged primarily in conducting foreign intelligence or counter-intelligence activities. Congress passed legislation in 1998 to ensure these civil servants are covered by federal law, and the Obama administration issued two directives in 2012 protecting intelligence personnel. Those orders banned retaliation against whistleblowers in the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency and other intelligence organizations. As the Center for Public Integrity explains, until these directives “these agencies were not specifically prohibited from retaliating against whistleblowers”—disclosure of classified data, after all, is a federal offense in itself, punishable by even harsher sanctions than firing.
Congress also altered the WPA in 2012. The creatively-named Whistleblower Protection Enhancement Act (WPEA) clarified the WPA’s protections to ensure government employees who blow the whistle do not lose protection if, for example, their disclosure was made to someone who participated in the wrongdoing disclosed.
And federal government employees are not the only individuals who enjoy statutory whistleblower protections.
The National Defense Authorization Act of 2013 made it unlawful for the employee of a federal contractor, subcontractor, grantee, or subgrantee to be fired or discriminated against for blowing the whistle. And, according to the Congressional Research Service, Congress has also established whistleblower protections for individuals in certain private-sector employment through the adoption of whistleblower provisions in at least 18 other industry-specific federal statutes. These include the Clean Air Act (CAA), which prevents employers from seeking retribution if an employee brings suit or testifies in a CAA lawsuit.
The Dodd-Frank Act established protections for financial services industry employees. Under that law, employers cannot discriminate or fire an individual for “providing information related to a violation of the Commodity Exchange Act to the Commodity Futures Trading Commission (CFTC) or for assisting in any investigation or judicial or administrative action of the CFTC based upon or related to such information.” A similar requirement was established under Dodd-Frank for the Securities and Exchange Commission (SEC) to create its own whistleblower program.
Today, most states also have whistleblower protection laws on the books.
Despite what President Trump and some of his supporters have said about the current whistleblower, the American public generally has supported, and certainly has respected, individuals who have revealed waste, fraud, abuse, and injustice. The Government
Accountability Project offers a timeline of some of the more well-known U.S. whistleblowers. They include:
Benjamin Franklin, who revealed letters proving the Massachusetts governor misled Parliament to promote a military buildup in the new world;
Upton Sinclair, who exposed conditions inside Chicago pig slaughterhouses; and
Ron Ridenhour, a U.S. Army helicopter gunner during the Vietnam War, who described the events at My Lai in a letter to Congress.
Perhaps the most celebrated American whistleblower of all time was Deep Throat—one of the key sources for Bob Woodward and Carl Bernstein’s Washington Post reporting of Watergate. Even though the Watergate saga preceded modern whistleblowing laws, the identity of this whistleblower was kept secret for more than 30 years. Will today’s whistleblower be as lucky? Only time will tell.