White House Employees
White House employees may be in the best position to witness illegal political coercion or activity in the federal workplace, improper destruction of documents in violation of federal recordkeeping laws, or other wrongdoing during a presidential transition. By disclosing information early, White House employees can prevent or minimize the harms of wrongdoing by allowing Congress, oversight agencies, and the press to investigate and address disclosures quickly.
Although federal whistleblower protections for White House employees depend on an individual’s detail and the nature of the information disclosed, the reporting of information about misconduct can spur accountability necessary to protect our democracy in November.
White House employees who observe wrongdoing are encouraged to reach out to attorneys at Government Accountability Project for an expert analysis of their unique case.
What to Know Before Blowing the Whistle
Each whistleblower case is unique, requiring an analysis of the facts before a legal strategy is determined. While the following information is neither comprehensive nor should be construed as offering legal advice, it offers some basic guidance on whistleblower rights before reaching out to experts at Government Accountability Project to further assist you.
What is Whistleblowing?
A whistleblower is an individual who discloses information that he or she reasonably believes evidences a violation of law, rule or regulation; gross mismanagement; a gross waste of funds; abuse of authority; or a substantial and specific danger to public health or safety.
Disclosures of "Lesser" Misconduct and Policy Disagreements
If the misconduct does not fall into a category of concern as outlined above, it does not mean that the concern isn't important, valid, or even corrosive to workplace integrity. Likewise, an employee may have a legitimate dispute about a decision of management.
However, if an employee’s concern is not about legal violations, gross mismanagement, a gross waste of funds, abuse of authority, a substantial and specific danger to public health or safety, the disclosures would not rise to a level that would meet the standard of “whistleblowing” protected under the Whistleblower Protection Act or most other whistleblower protection laws.
Similarly, if an employee’s disagreement with a policy decision is rooted in a difference of opinion, rather than about the specific consequences of the policy decision that the employee reasonably believes would result in legal violations, gross mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health or safety, that policy disagreement would not constitute protected whistleblowing under the Whistleblower Protection Act.
White House Employees’ Whistleblower Rights
Rights to report wrongdoing under the Whistleblower Protection Act (WPA), the Intelligence Community Whistleblower Protection Act (ICWPA), or other laws that protect whistleblowers apply to many White House employees and contractors. Political appointees are exempted from statutory whistleblower protections, but may have constitutional speech rights to communicate in their private capacity on matters of public concern under the First Amendment. The legal landscape is complicated, with different protections affording different remedies with distinct procedural steps and paths for enforcement.
Below we highlight the primary laws that support the rights of federal employees and contractors to report serious misconduct they witness on the job. The list is not comprehensive, and we strongly encourage anyone thinking about blowing the whistle to seek advice from an attorney experienced in representing whistleblowers.
The Whistleblower Protection Act
The Whistleblower Protection Act is the primary law that gives most federal employees, those in the competitive service merit system, the right to report serious wrongdoing free from reprisal. The WPA gives most federal employees the right to disclose information, both internally to co-workers, managers, organizational hotlines, or an agency Inspector General, Congress, or agency enforcement offices, and absent statutory bars or classified status, externally to the media, or watchdog organizations.
Illegal Non-Disclosure Policies
It is illegal to gag any federal employee or federal contractor employee from blowing the whistle. In fact, longstanding appropriations law and the Whistleblower Protection Act require that any policy, directive, form, or any management communication limiting employee speech must include explicit language informing employees that their statutory rights to blow the whistle supersede any restrictive terms and conditions of the nondisclosure agreement or policy. The Office of Special Counsel, who enforces this statutory requirement, interprets a management communication to be as broad as an email restricting an employee’s speech either to Congress or the media.
The First Amendment
The First Amendment protects federal employees’ ability to speak in their private capacities, on their own time, about matters of public concern. For speech to be protected under the First Amendment, courts must determine that its public benefit outweighs the government’s interest in efficient operations free from disruption. This uncertain balancing test means an employee will not know whether even matters of public concern can be safely communicated until after a legal ruling that the information is net beneficial. While even confidential policy advisors in an elected official’s inner circle have First Amendment rights, courts have weighed the balancing scales heavily against protecting disclosure.
Generally speaking, public employees are covered by the First Amendment when engaging in public discourse about political, social, or community concerns as private citizens, such as writing a letter to the editor critical of policy choices or speaking at a public meeting as a concerned citizen, or exercising free speech rights internally where they work. Normally civil servants do not have court access due to a Supreme Court ruling that their administrative remedies are exclusive. That still leaves access for political employees or confidential assistants outside the civil service. Further, in some judicial circuits such as the District of Columbia, even civil servants can obtain injunctive relief against retaliation or prior restraint (efforts by the government to require employees to seek approval before communicating in their private capacities), whistleblowers can challenge First Amendment violations in federal district court.
Whistleblower Protections for Federal Contractors and Grantees
Government contractor employees and federal grant recipients who work for non-intelligence federal agencies also have whistleblower protections, including access to court and a jury trial if administrative remedies fail. The National Defense Authorization Act (NDAA) for FY 2013 extends with better due process the Whistleblower Protection Act (WPA) rights for federal civil service employees. The NDAA rights cover all individuals working on a government contract or grant, including personal services contractors and employees of contractors, subcontractors, grantees, or subgrantees.
Whistleblower Protections for Intelligence Community (IC) Workers
A separate legal patchwork allows Intelligence Community (IC) employees and contractors to lawfully report wrongdoing and receive protection from retaliation. Created to safeguard classified information while allowing oversight from both internal and external federal watchdogs, the system requires workers, whether they be case officers or analysts or support staff, to follow the disclosure process outlined in the Intelligence Community Whistleblower Protection Act (ICWPA) of 1998 to obtain protections from retaliation.
The ICWPA allows intelligence professionals to make “protected disclosures” of “urgent concerns” to either their agency’s Inspector General or the Inspector General of the Intelligence Community. Urgent concerns may include serious or flagrant violations of laws, gross waste, or improper administration relating to an intelligence program. Urgent concerns may also include lying to or willfully withholding information from Congress, as well as certain retaliation or threats of retaliation for making a protected disclosure of urgent concern. Even if what you witness may not constitute an urgent concern, reporting violations of law, rule, or regulation and waste, fraud, or abuse through the ICWPA system constitutes protected activity qualifying individuals for whistleblowing protections.
Ironically, the Intelligence Community Whistleblower Protection Act does not outlaw retaliation or include any protection against it. In 2012, President Obama created a reprisal shield through Presidential Policy Directive 19 (PPD-19), which has since largely been codified by Congress. PPD-19 outlaws retaliation in job or security clearance actions for IC employees, and security clearances for IC contractors. It allows them to seek relief through agency Inspector General investigations funneled to review administered by the Intelligence Community Inspector General.
We Can Help You Make a Difference
In our experience, whistleblowers will always come forward in the face of wrongdoing, whether their legal protections are weak, strong, or even non-existent, as long as they believe that speaking out will make a difference. While we are already working to support stronger statutory whistleblower protections for White House employees, we also have significant experience supporting whistleblowers and ensuring their information promotes accountability despite weak legal rights.
White House employees and other whistleblowers who have additional information about misconduct should know that their disclosures will fuel further efforts to ensure that our democracy functions as they must for all citizens.
If you are an employee in the White House who has observed wrongdoing, we encourage you to reach out to Government Accountability Project where attorneys experienced in whistleblower laws and protection can help you determine how to raise concerns safely and effectively.