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Protecting Whistleblowers since 1977

James Comey and the Whistleblower Protection Act

Tom Devine, June 09, 2017

Understandably, James Comey’s testimony yesterday has sparked queries about his rights under whistleblower laws. He blew the whistle on matters fundamental to democracy that could spark a constitutional showdown. Sadly, however, due to loopholes that Congress should close, he had no rights under the Whistleblower Protection Act or any other whistleblower law.  

There may be constitutional showdowns in connection with Mr. Comey’s actions and testimony. But the Whistleblower Protection Act is not relevant for three reasons. 1) It does not cover presidential appointees. [5 USC 2302(a)(2)(B)]. 2) It does not cover the FBI or any other intelligence community agencies. [5 USC 2302(a)(2)(C)]. 3) It only covers personnel actions, not criminal liability or other retaliation to which Mr. Comey may be vulnerable, such as removal of his security clearance. [5 USC 2302(a)].

Federal Air Marshall Robert MacLean’s case has been raised in connection with allegations that Mr. Comey acted improperly by sharing information with the media. As one of Mr. MacLean’s lawyers since 2010, I was gratified that both he and the Whistleblower Protection Act survived due to a 7-2 Supreme Court victory. But the victory was on grounds of statutory construction to define legislative language, not First Amendment principles. Before public servants like Mr. Comey are safe, we will have to win again.