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Slate: Trump’s War on Whistleblowers Goes Well Beyond His Unenforceable NDAs

March 29, 2018
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One might expect the Trump administration’s escalating chaos to prompt more federal employees to blow the whistle on illegality and abuses, rather than waiting for Twitter-firingsor special counsel Robert Mueller’s advancing probe. But widespread awareness of Trump’s eagerness to enforce nondisclosure agreements to silence unwanted speech, from Stormy Daniels to Steve Bannon, is one likely reason more workers are not speaking out.

Earlier this month, the Washington Post’s Ruth Marcus reported that Trump had senior White House staff members sign lifetime nondisclosure agreements barring them from revealing “confidential” information from their time in government.

This is not idle background noise. In January, the president’s personal lawyer sent former White House chief strategist Steve Bannon a cease-and-desist letter after Bannon told Fire and Fury author Michael Wolff that he viewed the actions of Trump’s son, Donald Jr., to be “treasonous.” This cease-and-desist was only one of the Trump administration’s most overt efforts to curtail the speech of federal employees.

There have also been repeated efforts within federal agencies to chill employee speech, including increased investigations against “leakers” and mandatory agency “anti-leak” trainings. Other efforts, like the NDAs, illegally violate laws that supersede gags on employees’ rights to blow the whistle.

The Department of Energy, the Department of Agriculture, the National Park Service, the Department of Health and Human Services, and the Environmental Protection Agency have sought to ban employees from making statements or providing documents to the public or journalists. Last fall, the EPA barred three of its scientists from speaking at a press conference and workshop about the effects of climate change on the health of the Narragansett Bay. At the end of 2017, the Washington Post reported that Centers for Disease Control and Prevention officials implemented a “word ban” allegedly prohibiting policy analysts from using certain terms, including “transgender,” “fetus,” “evidence-based” and “science-based,” in budget documents given to the CDC’s partner organizations and to Congress. (The agency denied the accusations.) Most recently, the Department of Justice issued a memo prohibiting its employees from communicating with members of Congress or their staff without first consulting with the DOJ’s Office of Legislative Affairs.

These gags are shameless legal bluffs. Without explicit reference to the primacy of employees’ whistleblower protections, none are legal or appropriate.

In 1978, 1989, 1994, and 2012, Congress unanimously affirmed or reaffirmed civil servants’ right to report information they reasonably believe shows mismanagement, a gross waste of funds, an abuse of authority, a substantial and specific danger to public health and safety, or a violation of any law, rule, or regulation.

Anti-gag laws have an even deeper mandate. Federal law requires that any nondisclosure policies, forms, or agreements include explicit language noting that an employee’s statutory right to blow the whistle supersedes any free speech restrictions. Without that language, any federal activities to implement or enforce gags are illegal spending for illegal censorship.

The Lloyd–La Follette Act of 1912 also outlaws denial or interference with the right of employees to communicate with Congress, and appropriations law long has required future salary forfeiture for violators. If the rule of law matters, Attorney General Jeff Sessions’ memo barring employees’ communication with Congress and President Trump’s forcing his staff to sign an NDA also barring such communication, should trigger the loss of both their salaries.

Others have discussed why efforts to enforce an NDA should fail on First Amendment grounds, and as a contract that would be unenforceable as a matter of public policy.

Despite being unenforceable and illegal, these suppressive acts create a profound chilling effect on federal employees’ speech, counter to the intent and letter of the nation’s whistleblower protection laws.

Any effort to chill government employees from speaking hampers Congress’ ability to engage in oversight and threatens citizens’ right to know about abuses of power that betray the public trust. The administration must clarify that legal whistleblower rights trump its threats. Failure to do so will sow repressive confusion among federal agency employees about their free speech rights. It could also silence those employees who might otherwise choose to blow the whistle. Both outcomes are unacceptable. 

Author: 
Tom Devine and Dana Gold
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