New Investigation:

How Lax EPA Oversight Enabled Jackson's Water Crisis.

Championing Responsible National Security Policy
|
Analysis

Stop Attacking the Right to Report

Both the Inspector General and the Whistleblower Followed the Law

In the swirl of the news cycle about revelations coming from an intelligence whistleblower and misguided but predictable attacks on them, we want to set some facts straight. The whistleblower’s complaint documented his urgent concern that President Trump pressured the president of Ukraine to investigate his political opponent Joe Biden and his son Hunter Biden. The whistleblower’s allegations were largely corroborated with a summarized partial transcript of the phone call. Given the confusion—and perhaps deliberate disinformation—regarding whistleblower disclosures, and specifically the requirements for intelligence community whistleblowers to make disclosures to the inspector general, it’s particularly important for Congress, as well as the media covering this breaking news, to separate fact from fiction in this complicated area of the law.

It’s not new to see the motivations of whistleblowers and inspectors general questioned when their disclosures are politically inconvenient.

First, a federal government employee who blows the whistle only needs to have a “reasonable belief” of wrongdoing, as has been codified for decades in federal whistleblower law. Contrary to misinformation being spread by policymakers and pundits in the press, there is no whistleblower law that requires the whistleblower to have firsthand knowledge of the wrongdoing for them to be protected against retaliation for having made the disclosure.

In Caught Between Conscience and Career, the book we coauthored with the Government Accountability Project and Public Employees for Environmental Responsibility, we explain the burden of proof for a whistleblower who wants to disclose a prohibited activity, including a violation of a law, rule or regulation, or abuse of authority:

When making a disclosure, you must have a “reasonable belief” that the information is evidence to demonstrate one of these prohibited activities. This means that you must have believed that the information evidenced a prohibited activity, and your belief must be objectively reasonable, meaning it would be reasonable for someone in your position to draw the same conclusion that you did.

Those who currently incorrectly claim that whistleblowers must have firsthand knowledge of the wrongdoing they’re disclosing have focused on language in a previous version of the form that intelligence community whistleblowers use to disclose an “urgent concern” to the Intelligence Community inspector general. However, yesterday, the inspector general’s office released a statement that should dispel that conspiracy theory; the statement explained that the office removed that language from the current form because it “could be read—incorrectly—as suggesting that whistleblowers must possess first-hand information in order to file an urgent concern complaint.”

It is rare that a single whistleblower has all the relevant firsthand evidence about the situation they’re blowing the whistle on—their disclosure is often only one piece of the puzzle. That’s why substantiating or refuting a whistleblower disclosure requires investigation, by inspectors general, congressional investigators, journalists, or organizations like POGO. Often, in order for a disclosure to be substantiated, the whistleblower needs to help provide leads for a government investigator to be able to corroborate the disclosure. That is generally how all of us who work with whistleblowers, both inside and outside the government, are able to prove that wrongdoing occurred.

As longtime whistleblower champion Senator Chuck Grassley (R-IA) noted earlier today:

When it comes to whether someone qualifies as a whistleblower, the distinctions being drawn between first- and second-hand knowledge aren’t legal ones. It’s just not part of whistleblower protection law or any agency policy. Complaints based on second-hand information should not be rejected out of hand, but they do require additional leg work to get at the facts and evaluate the claim’s credibility.

Moreover, the intelligence community inspector general’s office made clear that the issue of the form is a red herring: according to its statement yesterday, the whistleblower who disclosed the “urgent concern” regarding the president’s call with the president of Ukraine used that earlier form and indicated on it that they had both firsthand and secondhand information. Furthermore, both versions of the form ask whether the whistleblower has firsthand knowledge or has information provided by others—meaning, firsthand knowledge is not required for the disclosure to be legal and protected under the law.

Second, in contrast to whistleblower protections across the federal government, there are additional hoops for intelligence community whistleblowers to jump through in order to make their disclosures. Most federal employees and contractors have a wider array of legally protected channels to disclose wrongdoing, such as going to Congress directly or in some cases going to the press. Intelligence community whistleblowers are required to go through their inspector general, who then has to go through the director of national intelligence, who in turn reports the whistleblower’s concerns to Congress. 

It’s infuriating that instead of wrestling with and assessing the serious concerns raised by the whistleblower’s disclosure, some are trying to create a false controversy over the legality of the disclosure. It’s not new to see the motivations of whistleblowers and inspectors general questioned when their disclosures are politically inconvenient. But that doesn’t make the current situation any less troubling. To productively move forward, attacks on the whistleblower by policymakers and pundits must end, and policymakers must now focus on conducting a thorough inquiry and investigation of the content of the disclosure.