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Protecting Whistleblowers since 1977

Trump Launches Illegal "Blitzkrieg" on the Whistleblower Protection Act

Tom Devine, January 26, 2017

President Trump’s promise to “drain the swamp” of Washington’s bureaucracy cannot succeed without whistleblowers. So why has his administration launched an apparently illegal blitzkrieg on the Whistleblower Protection Act (WPA) through blanket gag orders?

On his second day in office, a series of agencies issued gag orders that are incompatible with four provisions of the WPA, two longstanding appropriations spending bans, a century old shield on congressional communications, and the First Amendment. They were issued at the Departments of Agriculture, Energy, Health and Human Services, and Interior, as well as the Environmental Protection Agency. So far, they appear primarily to target scientists and other professionals. They range from restrictions on social media, to blanket restraints on all communications, including Congress.

A January 18 memo illustrates this. The Energy Department’s public relations chief directed that “NOTHING is released after 12:01 on Friday that I have not cleared on …. New team, new rules.”

The new rules cancel the rule of law. Four federal laws reaffirm a requirement that restrictions on federal employee speech have “anti-gag” language. That means any nondisclosure policy, form or agreement must also include a congressionally-required qualifier stating the free speech rights in whistleblower and related laws trump any contradictory restrictions. To date, there is no indication that any of the new gag orders include that qualifier.

Without anti-gag language, prior approval and uncontrolled restraints on speech violate the constitution and seven federal laws, all passed unanimously. For starters, prior restraint is the foundation for an Official Secrets Act that is incompatible with the First Amendment.

The gags also violate the Lloyd Lafollette Act of 1912, which shields all communications by government employees with Congress. The Whistleblower Protection Enhancement Act of 2012 has three anti-gag provisions, as well as a ban on censorship that threatens scientific freedom. Two appropriations riders that have been passed for decades without opposition ban any spending to implement or enforce uncontrolled nondisclosure rules. One bans spending for any restraints without anti-gag language. The other adds teeth for the Lloyd Lafollette Act by banning salary payments for those who obstruct congressional communications.

There is a reason for this broken record of legal mandates, and it is consistent with Trump’s election’s mandate for a government accountable to the citizens. As Justice Brandeis explained, “If corruption is a social disease, sunlight is the best disinfectant.” Whistleblowers live that principle by exercising free speech rights to challenge government abuses of power that betray the public trust.

More than at any time in history, these truth-tellers are making a difference. They are the lifeblood for any genuine campaign against government fraud, waste and abuse. They have prevented the government from going AWOL during terrorist attacks, exposed fatal neglect of our nation’s veterans, sharply reduced Iraqi battlefield casualties, exposed the Fast and Furious sales of weapons to drug cartels, and exponentially increased the government’s fraud recoveries.. Aren’t those the new administration’s goals?

Without whistleblowers, anti-corruption campaigns are doomed to be empty magnets for cynicism. As the 1978 congressional Leahy Report explained, “The code of silence thwarts top management’s ability to effectively manage and actually removes accountability from their shoulders.  Fear of reprisal … compromises not only the employee, management and Code of Ethics, but also the Constitutional function of congressional oversight itself.”

When it first passed whistleblower rights that same year, the Senate Report put an exclamation point on that insight: “Protecting employees who disclose government illegality, waste and corruption is a major step toward a more effective civil service. In the vast Federal bureaucracy it is not difficult to conceal wrongdoing … But there are employees who know it has occurred, and who are outraged by it.”

When weakened by hostile interpretations, Congress unanimously revived and reaffirmed those rights three times, in 1989, 1994 and 2012. Does the President really want to muzzle these people?  

Hopefully these gag orders are just spontaneous efforts by scattered bureaucrats afraid to offend the new boss. If so, the boss needs to set them straight. If he wants whistleblowers to believe in him, President Trump needs to intervene and show he has the back of those who risk their professional lives for his campaign promises. Washington’s swamp won’t get drained without them.