Cecily Zamora
In 2019, President Trump's behaviour in office revealed some previously unrecognised weaknesses in federal laws, including those relating to whistleblowing. The White House's attempt to block the release to Congress of a report from a whistleblower in the intelligence community, and Trump's subsequent characterisation of the staffer as a spy guilty of treason, highlighted issues with how these reports are handled, how privacy is protected, and how retaliation is received. This article will explore the laws that Trump is breaking in relation to whistleblowing.
| Characteristics | Values |
|---|---|
| Weak spots in how reports are handled | The White House's attempt to block the release to Congress of a report from a whistleblower in the intelligence community |
| Weak spots in how privacy is protected | The White House's attempt to block the release to Congress of a report from a whistleblower in the intelligence community |
| Weak spots in how retaliation is received | The White House's attempt to block the release to Congress of a report from a whistleblower in the intelligence community |
| Limited protection for whistleblowers | The whistleblower loses protection from retaliation if they break the constitutional impasse between the director of national intelligence and Congress |
| Whistleblower protection laws have loopholes | Whistleblowers can be fired for "national security reasons" |
| Whistleblower protection laws do not apply to members of the armed forces | N/A |
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![Whistleblower Protection Enhancement Act of 2012 [S. 743]](https://m.media-amazon.com/images/I/71hgvZ76LiL._AC_UY218_.jpg)
What You'll Learn
- The White House's attempt to block the release of a whistleblower report to Congress
- The whistleblower's privacy and protection from retaliation
- The whistleblower's limited protection under the law
- The Intelligence Community Whistleblower Protection Act's lack of protection
- The revocability of anti-retaliation protections provided by PPD-19
The White House's attempt to block the release of a whistleblower report to Congress
This incident has highlighted the limited protection that whistleblowers have under the law. While the Intelligence Community Whistleblower Protection Act was written to provide government workers with a safe process to report instances of abuse or wrongdoing within the intelligence community, it has been argued that it does not offer much protection in practice. For example, any additional anti-retaliation protections provided by Presidential Policy Directive 19 (PPD-19) or other presidential directives can be revoked by President Trump. Even if PPD-19 stays in effect, it has several loopholes, such as allowing for the firing of a whistleblower for "national security reasons". It also doesn't apply to members of the armed forces.
Furthermore, even if PPD-19 or the Intelligence Community Whistleblower Protection Act can prevent common forms of retaliation, such as firing, it doesn't protect whistleblowers from criminal prosecution for the disclosure of confidential information related to national security. This means that if a whistleblower decides to break the constitutional impasse between the director of national intelligence and Congress, they could lose any protection from retaliation.
The White House's attempt to block the release of the whistleblower report to Congress has therefore brought to light several issues with the current federal whistleblowing laws and the need for stronger protections for whistleblowers.
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The whistleblower's privacy and protection from retaliation
The Intelligence Community Whistleblower Protection Act was written to provide government workers with a safe process to report instances of abuse or wrongdoing within the intelligence community to Congress. However, the law has been criticised for not offering much protection to whistleblowers. For example, it doesn't immunise them from criminal prosecution for disclosing confidential information related to national security.
Additionally, any anti-retaliation protections provided by PPD-19 or other presidential directives are revocable by President Trump. While PPD-19 prohibits retaliation against whistleblowers as long as they follow the relevant steps outlined by the Intelligence Community Whistleblower Protection Act, it has several loopholes. For instance, it allows for the firing of a whistleblower for "national security reasons" and doesn't apply to members of the armed forces.
The limited protection that whistleblowers have is not in the law itself. This raises concerns about retaliation, especially given past cases like longtime FBI employee Andrew McCabe, who was fired the day before his retirement after Trump repeatedly criticised him on Twitter.
Trump's norm-breaking behaviour in office has revealed weaknesses in federal laws about how these reports are handled, how privacy is protected, and how retaliation is received.
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The whistleblower's limited protection under the law
Whistleblowers have limited protection under the law. The Intelligence Community Whistleblower Protection Act was written to provide government workers with a safe process to report instances of abuse or wrongdoing within the intelligence community. However, it has been argued that the law doesn't offer much protection to whistleblowers. For example, it doesn't immunise them from criminal prosecution for the disclosure of confidential information that deals with national security.
Additionally, any anti-retaliation protections provided by PPD-19 or other presidential directives are revocable by President Trump. Even if PPD-19 stays in effect, it has several loopholes, such as allowing for the firing of the whistleblower for "national security reasons". It also doesn't apply to members of the armed forces.
The limited protection that whistleblowers have is not in the law itself. For instance, President Barack Obama issued PPD-19, which prohibited retaliation against whistleblowers as long as they followed the relevant steps outlined by the Intelligence Community Whistleblower Protection Act or other applicable whistleblower law. That means if the whistleblower decides to break the constitutional impasse between the director of national intelligence and Congress, they'll lose any protection from retaliation.
Trump and his allies have complained that former FBI Director James Comey leaked information to the press. However, in this case, the whistleblower appears to be doing exactly what the law says they are supposed to do.
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The Intelligence Community Whistleblower Protection Act's lack of protection
The Intelligence Community Whistleblower Protection Act (ICWPA) is a federal law that provides a procedure for employees and contractors of specified federal intelligence agencies to report complaints or information to the United States Congress about serious problems involving intelligence activities. However, the ICWPA has been criticised for lacking adequate protection for whistleblowers.
Firstly, the ICWPA does not prohibit employment-related retaliation and provides no mechanism for challenging retaliation that may occur as a result of making a disclosure. This means that whistleblowers can be fired or otherwise retaliated against without any legal recourse. Additionally, the ICWPA does not immunise whistleblowers from criminal prosecution for the disclosure of confidential information related to national security.
Furthermore, any additional anti-retaliation protections provided by Presidential Policy Directive 19 (PPD-19) or other presidential directives are revocable by the President. PPD-19, for example, has several loopholes, such as allowing for the firing of a whistleblower for "national security reasons".
The lack of protection under the ICWPA has been highlighted by the case of a whistleblower who came forward with a tip that President Trump pressured the head of the Ukrainian government to open an investigation into his chief political rival. The White House attempted to block the release of the whistleblower's report to Congress and Trump characterised the whistleblower as a "spy" guilty of "treason". This incident has brought to light the weak spots in how these reports are handled, how privacy is protected, and how retaliation is received.
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The revocability of anti-retaliation protections provided by PPD-19
President Trump is breaking the Intelligence Community Whistleblower Protection Act.
Presidential Policy Directive 19 (PPD-19) was signed in 2012 and provided the first specific protections against reprisal actions for making a complaint. It prohibits retaliation against whistleblowers as long as they follow the relevant steps outlined by the Intelligence Community Whistleblower Protection Act or other applicable whistleblower law. However, if a whistleblower decides to break the constitutional impasse between the director of national intelligence and Congress, they will lose any protection from retaliation.
PPD-19 allows for a whistleblower to request an external review by an IG panel chaired by the IGIC if the employee has exhausted the agency review process. As part of the review process, PPD-19 requires the IC element Inspector General to determine whether a personnel action was in reprisal for a lawful disclosure. The IG makes recommendations for corrective action in the event of a determination that a violation took place. The agency head "shall carefully consider the findings of and actions recommended by the agency Inspector General", but they do not have to accept an IG's recommendation for corrective action.
Even if PPD-19 or the Intelligence Community Whistleblower Protection Act can somehow stop against common forms of retaliation, such as firing, it doesn’t immunize the whistleblower from criminal prosecution for the disclosure of confidential information that deals with national security. It also doesn’t apply to members of the armed forces.
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Frequently asked questions
The Intelligence Community Whistleblower Protection Act, which was written to provide government workers a safe process by which they could report to Congress instances of abuse or wrongdoing within the intelligence community.
By attempting to block the release to Congress of a report from a whistleblower in the intelligence community and then characterising the staffer as a "spy" guilty of "treason".
It raises concerns about retaliation and shows the weak spots in how these reports are handled, how privacy is protected and how retaliation is received.
