Broad Coalition Applauds House Judiciary Committee for Whistleblower Protections

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Dear Chairman Johnson and Ranking Member Issa:

We, the undersigned organizations, represent a broad cohort of civil society groups, each with our own perspectives and ideological preferences on a wide range of public policy issues. However, we all share a commitment to protecting government whistleblowers as a key means of promoting a more accountable government and cracking down on waste, fraud, abuse, and corruption.

Whistleblowers are often on the front lines when it comes to exposing problems in the government, ranging from misuse of COVID-19 funding to deadly secret wait-lists for veterans seeking medical care.¹ One of the perpetual problems whistleblowers face is a lack of adequate protections from retaliation and intimidation from those who stand to be embarrassed (or worse) by a whistleblower’s revelations.²

While our organizations may have differing positions on H.R. 4827, the Judiciary Accountability Act of 2021,³ and this letter is not an endorsement of the bill in its entirety, we all strongly support efforts to enact protections for whistleblowers in the government, no matter which branch of government those individuals happen to serve. We are thus writing to express our support for the substance of Section 3 of H.R. 4827, which we also note closely mirrors similar whistleblower protection language contained in a previous bill championed by Senate Judiciary Committee Ranking Member Chuck Grassley (R-IA).⁴ The bipartisan and bicameral interest in protecting federal judiciary whistleblowers is encouraging and should provide a strong impetus for action on this issue.

Many of our organizations have fought for years to promote enhanced protections for different types of whistleblowers, including federal government employees as a whole and, more narrowly, employees in the intelligence community.⁵ Different circumstances call for different kinds of protections, but an untenable reality remains: Across all levels of the federal government, whistleblowers do not have the protections they need in order to reveal hard truths without fear of reprisal. This creates a chilling effect on those who could blow the whistle on government malfeasance and, in turn, produces a less accountable and more corrupt government. But as some pro-whistleblower stakeholders have noted, Congress is in prime position to do something about this troubling situation.⁶

All of this applies to the federal judiciary just as much as it does to any other branch or entity within the federal government. Therefore, we write to applaud the committee for considering the bipartisan Judiciary Accountability Act, which would extend best practice whistleblower protections for all employees, irrespective of employment category, within the judicial branch. The lack of such existing protections is another manifestation of the government-wide problem of impunity for those who act improperly and retaliation against those who bravely attempt to shine a light on that misconduct from within. The judiciary is no exception. Ensuring that whistleblowers in the judiciary have appropriate and robust protections will only benefit the judicial branch as a whole by deterring misconduct and promoting accountability. Several instances in recent years lay bare the accountability problem in the courts.

First, in 2018, the Judicial Council of the U.S. Court of Appeals for the Tenth Circuit was alerted to several instances of sexual harassment by District of Kansas Judge Carlos Murguia. Pursuant to the Judicial Conduct and Disability Act, Chief Judge Timothy Tymkovich appointed a Special Committee to investigate these allegations, which found that “Murguia gave preferential treatment and unwanted attention to female employees of the Judiciary in the form of sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, much of which occurred after work hours and often late at night.”⁷ The council added, “All of the harassed employees stated that they were reluctant to tell Judge Murguia to cease his behavior because of the power he held as a federal judge.”⁸ This grave concern about retaliation contributed to an environment that deterred victims from coming forward, prolonging a cycle of harassment as Murguia kept his job far longer than he should have.

And in 2020, Olivia Warren, a North Carolina-based attorney and former law clerk to Ninth Circuit Judge Stephen Reinhardt, testified before your subcommittee about the harassment she was subjected to by Reinhardt. She said, “[A] barrier to reporting harassment for law clerks [is] the possibility of immediate retaliation by the judge,” which “is supplemented by the possibility of long-term retaliation by those devoted to protecting his reputation and remaining in his good graces.”⁹ This includes not only future employers in the private sector, but also judges and officials elsewhere in the judicial branch, since law clerks often have multiple clerkships or take positions as staff attorneys later in their careers.

We believe that the substance of Section 3 of H.R. 4827 would greatly protect whistleblowers in the judiciary, which would help promote a more accountable government, with fewer opportunities for corruption and abuse to go unchecked. We thank you for your vital work on this matter. We stand ready to support these efforts and look forward to engaging with your offices further.