Whistleblower Law: Can The President Be Held Accountable?

Whistleblowers are individuals who expose any kind of information or activity that is deemed illegal, unethical, or incorrect within a private or public organization. Whistleblower laws and regulations guarantee freedom of speech for workers and contractors in certain situations and protect them from retaliation for disclosing information. However, the extent to which these laws apply to the president is a complex question. While there are federal whistleblower protection laws in the United States, the application of these laws to the president specifically may vary and is a matter of ongoing debate.

Whistleblower Protection Act of 1989

The Whistleblower Protection Act of 1989 is a federal law in the United States that safeguards federal employees who expose illegal or unethical practices within the government. It separates the Office of Special Counsel (OSC) from the Merit Systems Protection Board, empowering the OSC to act as legal counsel for whistleblowers and those alleging prohibited personnel practices. The Act also authorises the Board to issue protective orders to shield witnesses or other individuals from harassment during proceedings or investigations.

The Whistleblower Protection Act of 1989 establishes that a federal agency violates whistleblower rights if its authorities take or threaten to take retaliatory action against an employee or applicant due to their disclosure of information. The OSC is tasked with investigating federal whistleblower complaints, and authorised federal agencies can grant protective orders to safeguard whistleblowers.

The Act further empowers the Special Counsel to file petitions against officials for engaging in prohibited personnel practices, violating laws within the Special Counsel's jurisdiction, or failing to comply with Board orders. It also prohibits the Special Counsel from intervening in cases without the employee's consent and from disclosing information about the whistleblower without their consent, except in cases of imminent danger.

Additionally, the Whistleblower Protection Act of 1989 authorises employees who have been adversely affected by prohibited personnel practices to take their cases before the Board or the Special Counsel. Whistleblowers must demonstrate that their disclosure contributed to adverse actions against them to establish reprisal. The Act also allows federal agencies to prioritise whistleblowers for transfers and provides interim relief for certain appellants to the Board.

Overall, the Whistleblower Protection Act of 1989 is a comprehensive law that aims to protect federal whistleblowers, ensure the investigation of complaints, and prevent retaliation against those who expose illegal or unethical practices within the government.

Whistleblower Protection Enhancement Act

The Whistleblower Protection Enhancement Act (WPEA) was signed into law by President Obama on November 27, 2012. The Act strengthens protections for federal employees who disclose evidence of waste, fraud, or abuse. It requires that any non-disclosure agreements (NDAs) include a statement affirming the employee's rights to disclose wrongdoing, and that NDAs without this statement may still be enforced if agencies give employees notice of the statement.

The WPEA amends federal personnel law to broaden whistleblower protections to include any violation of law, rather than just a violation of law. It also provides that a disclosure shall not be excluded from protection because it was made to a supervisor, because it revealed previously disclosed information, because of the employee's motive, because it was not made in writing, or because of the amount of time that has passed since the events described.

The Act defines a "disclosure" as a formal or informal communication or transmission, excluding policy decisions that lawfully exercise discretionary authority. It establishes a "disinterested observer" standard for evaluating the validity of disclosures that evidence violations of law, gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.

The WPEA prohibits the implementation or enforcement of any nondisclosure policy, form, or agreement that does not contain a specific statement affirming the employee's rights and liabilities regarding classified information, communications to Congress, reporting wrongdoing to an Inspector General, or any other whistleblower protection. It allows for the enforcement of NDAs that were in effect prior to the Act if the agency gives employees notice of the required statement.

The Act also adds the Office of the Director of National Intelligence and the National Reconnaissance Office to the list of intelligence community entities excluded from coverage under the Whistleblower Protection Act of 1989. It revises the standard of proof in disciplinary proceedings against an agency employee who takes adverse action against a whistleblower, requiring the Office of Special Counsel to show that the protected disclosure was a significant motivating factor in the decision.

The WPEA authorizes the Merit Systems Protection Board to require payment of reasonable attorney fees and compensatory damages in disciplinary actions and extends whistleblower protections to employees and applicants of the Transportation Security Administration. It also extends protections to any current or prospective federal employee for disclosures that they reasonably believe evidence censorship related to research, analysis, or technical information.

Intelligence Community Whistleblower Protection Act of 1998

The Intelligence Community Whistleblower Protection Act of 1998 (ICWPA) was passed to assist intelligence community whistleblowers who were excluded under the Whistleblower Protection Act (WPA). Under the ICWPA, a whistleblower who intends to report to Congress a complaint or information about an "urgent concern" is required to go to the inspector general (IG), who then has 14 days to determine whether the complaint or information appears credible. If it is found to raise an urgent concern and is deemed credible, the IG must transfer the information to the Director of National Intelligence, who is required to forward the complaint to the congressional intelligence committees within seven days.

The ICWPA defines a matter of "urgent concern" as:

• A serious or flagrant problem, abuse, violation of law or executive order, or deficiency relating to the administration or operation of an intelligence activity involving classified information.
• A false statement to Congress, or willful withholding from Congress, on an issue of material fact relating to the administration or operation of an intelligence activity.
• An action constituting reprisal in response to an employee's reporting of an urgent concern.

The ICWPA does include a provision protecting the whistleblower's identity from disclosure. However, aside from that provision, it does not offer protections from retaliation and does not provide mechanisms for challenging retaliation. Intelligence community whistleblowers operate under a different set of rules than other federal employees or corporate whistleblowers, leaving them uniquely vulnerable.

Presidential Policy Directive 19

PPD-19 establishes standards for all federal agencies with employees covered by the directive, including those under the Defense Intelligence Community Whistleblower Protection and the U.S. Department of Defense Whistleblower Program. The directive prohibits retaliation against these employees for their reports and establishes a system of intelligence community whistleblowing and source protection under the Office of the Director of National Intelligence, supervised by the Inspector General of the Intelligence Community (IC IG).

According to PPD-19, retaliation against employees is prohibited and cannot affect their eligibility for access to classified information. Employees who allege reprisal are allowed to request an external review by a three-member Inspector General panel if the applicable review process is exhausted. However, the panel can only make recommendations and cannot require agencies to correct retaliation.

The directive did not initially protect national security contractors like Edward Snowden from reprisal, except for decisions connected to their security clearance. Protections for intelligence community contractors were later codified within the Foreign Intelligence Surveillance Act Reauthorization Act of 2018.

Parts of PPD-19 were also incorporated into law through the Intelligence Authorization Act for Fiscal Year 2014.

Whistleblower Protection Program

The Whistleblower Protection Program is a set of laws and regulations that guarantee freedom of speech for workers and contractors in certain situations. Whistleblowers are protected from retaliation for disclosing information that they reasonably believe provides evidence of a violation of any law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.

The Whistleblower Protection Act was made into federal law in the United States in 1989. This act provides protection to whistleblowers who may receive demotions, pay cuts, or replacement. There are certain rules stated in this act that are civil protection standards against voidance of dismissal, voidance of cancellation of worker dispatch contracts, and disadvantageous treatment (i.e. demotion or a pay cut).

The U.S. Department of Labor's Whistleblower Protection Program can handle many types of retaliation claims based on legal actions an employee took or was perceived to take in the course of their employment. The program falls under the category of Public Law, which governs the relationship between people and the state and comprises constitutional law, criminal law, and administrative law.

Whistleblowers often face retaliation for their disclosures, including termination of employment. Several other actions may also be considered retaliatory, including unreasonable increases in workload, reduction of hours, preventing task completion, mobbing, or bullying. To address this, laws in many countries attempt to provide protection for whistleblowers and regulate whistleblowing activities. These laws tend to adopt different approaches to public and private sector whistleblowing.

In the United States, for example, there are organizations such as the United States Department of Labor (DOL) and laws such as the Sarbanes-Oxley Act and the United States Federal Sentencing Guidelines for Organizations (FSGO) that protect whistleblowers in the private sector. Additionally, the U.S. Department of Justice (DOJ) has a Whistleblower Protection Coordinator who educates employees and managers about prohibitions on retaliation for protected disclosures and educates employees who have made or are contemplating making a protected disclosure about their rights and remedies.

Overall, the Whistleblower Protection Program provides important safeguards for individuals who disclose information about wrongdoing within organizations, helping to ensure that they can do so without fear of retaliation or adverse consequences.

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