Robert F. Kennedy: Whistleblower Champion

by Martin Edwin Andersen | June 4, 2018

“Every time we turn our heads the other way when we see the law flouted, when we tolerate what we know to be wrong, when we close our eyes and ears to the corrupt because we are too busy or too frightened, when we fail to speak up and speak out, we strike a blow against freedom and decency and justice.”? Robert F. Kennedy

Fifty years after his death, the life of Robert F. Kennedy remains a beacon of hope and inspiration for yet another generation of Americans, more necessary today perhaps than at any time since June 5, 1968. Much of what is written in 2018 focuses on the epic legislative, bureaucratic and street battles of the 1960s, on Kennedy’s “transformation” as a political figure central to the wrenching debates, and the need for healing—both home and abroad. The fight for civil rights, the role of military might in foreign policy and national security, and the crying need for “radical inclusion,” the latter promoted by the most prescient in U.S. leadership now, are but the most important issues that form the cornerstone of Bobby’s legacy.

At the same time, it is important to remember the earlier life and times of RFK, for his basic values and moral compass set the stage for all that came after. During the heyday of anti-communist witch-hunter Joe McCarthy, it was young Bobby who went to war with the Wisconsin Republican’s vicious, calculating and self-promoting aide Roy Cohen. Cohen later became a lawyer for a Mafia whose deadly tentacles and reach affected vast swathes of American life, as well as for New York City glitterati. It was in that fight against organized crime that Kennedy took on corrupt (“Every man has his price”) Teamster labor leader Jimmy Hoffa. In his book, The Enemy Within, the emerging crusader rightly put both business and labor on notice that, “The tyrant, the bully, the corrupter and corrupted are figures of shame.” It was RFK’s values and his moral compass that led him to remind his readers, and those today who also appear to need reminding, of the central role played by the “toughness and idealism that guided our nation in the past,” a “spirit of adventure, a will to fight what is evil, and a desire to serve.”

Less known to the public is the specific role played by Robert Kennedy’s leadership in promoting modern-day whistleblowers and the rights of public employee free speech. Toughness, idealism, fighting evil and a desire to serve is what unites real whistleblowers across the political and ideological spectrum, those who confront violations of law, rule or regulation, gross mismanagement, gross waste of funds or abuse of authority.

The role played by Kennedy’s former assistant at the U.S. Department of Justice, John E. Nolan, Jr., and those whistleblowers who Nolan later defended, forms the underlying narrative. The story pulls together both later legislative battles and the most effective advocacy by both Democrats and Republicans in fighting for the right to speak truth to power.

A Korean War veteran and a graduate of the U.S. Naval Academy, Nolan, who had worked on John Kennedy’s 1960 presidential campaign, came to public attention as a negotiator with Cuban dictator Fidel Castro for the return of CIA officers and more than 1,100 other men captured in the abortive 1961 Bay of Pigs invasion. In 1963, he took a leave of absence from the prestigious Steptoe & Johnson law firm to become Attorney General Kennedy’s administrative assistant. It was in that position that Nolan spent much of that summer in the Deep South working with top RFK aides Burke Marshall and John Doar. Those crucial efforts of the first White House ever to promote civil rights is more than half a century later so stunningly well captured in Steven Levingston’s Kennedy and King: The President, the Pastor, and the Battle Over Civil Rights.

Robert Kennedy, Nolan remembered in an interview with the Washington Lawyer, “had the qualities of natural leaders that exceeded those of anybody else I have seen. He was very direct, and I thought he had extraordinarily good judgment. He made a lot of quick judgments and was pretty good on that.”

Of particular importance was how Nolan addressed questions of federal employee free speech rights: “The more significant or more complex an issue was, the more he studied it, sometimes with the benefit of conflicting views and large groups that he would probe with questions. … He was more likely to get the right answer under those circumstances than anybody else I know or have heard of.” (Italics added.)

It was just months after Kennedy was shot the night that he won the California and South Dakota primaries that Nolan came to represent the famed Department of Defense whistleblower A. Ernest Fitzgerald. The DoD official, he rightly noted, “you might say … was the father of whistleblowers.” It was fighting for Fitzgerald and the fundamental good government issues that his case represented that led Nolan to make his first appearance before the Supreme Court.

On November 13, 1968 civilian analyst Ernie Fitzgerald testified before the Subcommittee on Economy in Government of the Joint Economic Committee of the U.S. Congress about the Pentagon’s order for the C-5A jumbo cargo transport plane, designed and built by the military-industrial giant Lockheed. Already the scuttlebutt of rumors, Fitzgerald was asked by a senator about the cost overruns in the bureaucratic fix. He testified under oath that there were some $2.3 billion (approximately $14 billion in today’s dollars) in unexpected costs, in 1968 considered an incredible sum. As Nolan remembered, Fitzgerald’s world “blew up with that single answer.”

As Nolan recalled in the interview with the Washington Lawyer, when then-President Lyndon Johnson’s outgoing secretary of the air force met with the person taking that position in the Republican administration of Richard M. Nixon, the Democratic appointee “had an agenda of the eight most important issues to take up. This was pretty close to the height of the Cold War, and you can imagine the momentous issues of nuclear war or peace that might have been included. Nonetheless, Ernie Fitzgerald was number two on his list.”

At the beginning of 1970, the administration of a supposedly “new” Nixon reorganized the Department of the Air Force and ordered a unique “reduction in force” whose only victim was Ernie Fitzgerald, an action for which Nixon took responsibility. (Transcripts of White House tapes made public years later showed that Nixon ordered one of his aides to get “rid of that son of a bitch.”) After the Civil Service Commission concluded that Fitzgerald’s dismissal was unjust and the newly-minted whistleblower was able to get his old job back in a lawsuit, he found that he no longer had a phone in his office, nor a secretary, or even anything to do.

The ghost employee then sued Nixon himself and two presidential aides whose names would be forever enshrined in the coming Watergate scandal—Bryce Harlow, the first person appointed to the White House staff after Nixon was elected president, and Alexander Butterfield, who revealed the existence of the White House tapes during the scandal investigation.

Fitzgerald’s lawsuits provide insight into some of the hottest questions faced today in our nation’s capital. Argued in late 1981, the Supreme Court held, 5-4, in Nixon v. Fitzgerald the following year that presidential immunity was absolute. However, in the second case, Fitzgerald claimed that Harlow and Butterfield were involved in a conspiracy that resulted in his wrongful dismissal—a charge that they denied—and asked for damages. Nolan pointed out, “the issue was derivative absolute immunity: if the president has absolute immunity, the argument was that his special assistants should have derivative absolute immunity.”

“That case was remanded to the District Court and it was settled under circumstances that were favorable to Fitzgerald.”

Even before that—as the media had fun with Fitzgerald’s on-going whistleblowing about widespread fraud at the Pentagon, including $400 hammers and $600 toilet seats—according to Senator Chuck Grassley, now the chair of the Senate Judiciary Committee, Fitzgerald “was instrumental in helping get the Civil Service Reform Act of 1978 passed.”

What is certain is that some of the other most important figures in the second half of the 20th century were linked to the Kennedy promise and, frequently the Kennedy Administration, and were also in their own way whistleblowers, speaking truth to power. They too, are examples that showed a “toughness … that guided our nation in the past,” a “spirit of adventure, a will to fight what is evil, and a desire to serve.”

Patricia A. “Patt” Derian served as a brave civil rights champion in brutally racist Mississippi, comforting the family of martyred civil rights leader Medgar Evers the day after his murder by the Klu Klux Klan. She later went on to work for Bobby’s brother-in-law Sargent Shriver in the war on poverty. According to Ellen B. Meacham’s, moving Delta Epipheny; Robert F. Kennedy in Mississippi, in April 1967, following Senator Kennedy’s hearing in Jackson on allegations that the Head Start program in Mississippi was misusing federal funds—refuted in the testimony of the young civil rights attorney Marian Wright, who later married Kennedy aide Peter Edelman—Patt fêted Bobby at a cocktail party in her own home.

When Jimmy Carter became president in 1977, as The Times of London recalled upon her own passing two years ago, Patt was “a courageous champion of civil rights who took on some of the world’s most brutal dictators in her role as a senior American diplomat.” Those defenders in Washington of notorious strongmen, those who today form a bipartisan gallery of international perp apologists, sought to discredit Patt in every way possible as she blew the whistle as only those with real moral fiber can.

Truth to power was her strong suit. It was as the first assistant secretary of state for human rights that Patt underscored that when it came to efforts to restore and promote human rights “you always have to play it straight.” As a member of the Robert F. Kennedy Memorial Foundation (now RFK Human Rights) awards committee, Patt brought that laser-like focus to leading the fight against an Orwellian State Department decision to deny visas– for “terrorist activities”—to four Salvadoran human rights advocates who were to receive $30,000 as part of that year’s foundation award. A year later, her testimony in a civilian court in Buenos Aires about Argentina’s so-called dirty “war” electrified the mini-Nuremberg proceedings. The trial of the military junta members resulted in their being put behind bars for orchestrating a clandestine campaign of state terror, of mass torture and murder.

Former CIA Director William Colby was arguably the most important national security whistleblower in modern times. When he took over the post, the United States was reeling from humiliation in Southeast Asia, the Watergate scandal, revelations about Nixon Administration support for the military overthrow of an elected democracy in the Americas, and the fact the Soviet Union—the pre-Putins—appeared on the ascendancy. It was Colby, a “soldier-priest” in the clandestine service, who told truth to power, a list of 693 single-spaced pages known as “the family jewels” given to Congress, showed how the Agency had violated its charter by spying on Americans, reading their tax returns, tapping their telephones, and opening their mail. It had conducted LSD experiments on unwitting human guinea pigs. It had plotted to murder foreign leaders. As crusading journalist Daniel Schorr noted in his autobiography, Stay Tuned: A Life in Journalism,

At Tulane University, I had been scheduled to debate (former CIA Director) Bill Colby. He defended me better than I could have defended myself, telling the … audience, “Schorr carried out his obligation to the First Amendment and to himself as a newsman, and he should not be punished for the publication of the Pike (intelligence investigation) report.”

By disclosing some of America’s darkest secrets, and ensuring meaningful Congressional oversight, Colby was able to save an Agency most needed post-9/11, especially after revelations of Vladimir Putin’s direct involvement in trying to subvert the American democratic process.

At a time of great and frequently destructive hyper-politicization in the United States today, it is important to note that those at the forefront on Capitol Hill in promoting and protecting whistleblower rights span the Republican-Democratic and liberal-conservative divides. Senators Charles Grassley (R), Ben Cardin (D), Ron Johnson (R), Ron Wyden (D), Joni Ernst (R), Patrick Leahy (D), and Tammy Baldwin (D) and Members of the House Jackie Speier (D), Ron Coffman (R), Hank Johnson (D), and Ron Blum (R) are just some of the most fierce and effective champions of federal employee First Amendment rights.

Jackie Speier has noted:

“Whistleblowers are on the front lines, working to uncover waste, fraud, and abuse. Throughout my career, whistleblowers have been central to my work in oversight and reform. They’ve brought to light wasteful spending, hostile workplaces, and dangerous practices from the Pentagon to the pipelines beneath our feet. We must provide them with the protections they need to work with Congress and the Inspectors General to conduct genuine oversight. I look forward to working with my colleagues to fight for strong whistleblower protections across all departments and agencies.”

Being able to unite people of diverse backgrounds and experiences in difficult times was one of Robert Kennedy’s most important contributions to American politics. Whistleblowers honor not only his advocacy of change through law, but also the fact that today—when America needs it most—they serve and protect both the interests of the American taxpayer and our common values.

It was one of RFK’s favorite philosophers, Albert Camus, who said, “A man without ethics is a wild beast loose upon this world.” And as Kennedy said in his Law Day Address at the University of Georgia Law School, delivered 6 May 1961 in Athens, Georgia, “In the United States, we are striving to establish a rule of law instead of a rule of force. In that forum and elsewhere around the world our deeds will speak for us.”

Martin Edwin Andersen has been a national security and human rights whistleblower at both the Departments of Justice and Defense.  In 2001, he was the first national security whistleblower to receive the U.S. Office of Special Counsel’s “Public Servant Award” for fighting against Criminal Division failures to protect CIA classified information, senior DoJ management’s leaving themselves open to blackmail in proto-Putin Russia, and myriad issues of waste, fraud and abuse. In his most recent case involving U.S. Southern Command, Andersen has filed three Congressional Disclosures to the Intelligence Community Office of the Inspector General, the latest of which was forwarded by the Director of National Intelligence to the House and Senate Intelligence Committees on Thursday.

Posted in BLOG

Whistleblower Coalition Urges Office of Special Counsel to Investigate Justice Department amid Gag Order Trend

WASHINGTON, DC – Today, the Steering Committee of the Make It Safe Coalition (MISC) unanimously urged merit systems Special Counsel Henry Kerner of the Office of Special Counsel to investigate recent statements made by Attorney General Jeffrey Sessions that violate both the Whistleblower Protection Enhancement Act, the Lloyd Lafollette Act of 1912, and the FY 2017 Consolidated Appropriations Act. The letter supports conclusions made by Chairman of the Senate Judiciary Committee Charles Grassley (R-IA) delivered on February 5.

On January 29, Mr. Sessions issued a memorandum effectively barring “attorneys, officers, boards, divisions, and components” from communicating with “Senators, Representatives, congressional committees, or congressional staff” without prior approval from the Department of Justice’s (DOJ) Office of Legislative Affairs. It is especially egregious that the DOJ entrusted to enforce our nation’s laws is violating the Constitution’s First Amendment

The MISC letter underscores the dangers these actions pose to congressional oversight as well as the rights of federal employees and the U.S. public generally:

When an agency unlawfully gags its employees, it threatens Congress’ ability to engage in oversight and hampers citizens’ right to know about waste, fraud, abuse and threats to the public’s health, safety, and liberty. These efforts also create a chilling effect on the many federal employees committed to exercising professional integrity in fulfilling their agencies’ mandates.

 

GAP Legal Director Tom Devine commented,

The Justice Department’s blanket prior restraint on congressional communications cannot co-exist with the first amendment or the Whistleblower Protection Act. The WPA and appropriations law require all nondisclosure policies to have a congressionally-drafted addendum that rights to communicate with Congress and in whistleblower laws trump any conflicting restraints. The Attorney General’s order does not include the congressionally-required free speech qualifier. This lawlessness is worst when it comes from the agency responsible to enforce the rule of law.

At GAP, we are receiving regular reports of illegal prior restraint throughout the government. Illegal gag policies are becoming the rule, rather than the exception.  The Office of Special Counsel needs to exercise leadership reversing routine defiance of the overwhelming congressional anti-gag mandate. 

Elizabeth Hempowicz, Director of Public Policy for the Project On Government Oversight, commented,

It is disconcerting to see yet another executive branch communications memo that fails to include legally required language that makes it clear to all employees that their abilities to make protected disclosures remain intact. A key component to any remedy would be a clear communication from the highest levels of the Department of Justice to all employees and contractor staff that they are protected for blowing the whistle.           

Shanna Devine, Worker Health and Safety Advocate for Public Citizen’s Congress Watch Division, added,

Attorney General Sessions’ gag order violates DOJ employees’ century-old right to inform Congress of government wrongdoing.  OSC needs to take swift action to ensure government-wide compliance with the Whistleblower Protection Enhancement Act, starting with the removal of DOJ’s illegal memorandum.

The Make It Safe Coalition is a nonpartisan, trans-ideological coalition of 80 NGO’s united in support of whistleblower protection to further government accountability. In addition to the above organizations, the Steering Committee includes the Liberty Coalition, National Taxpayers Union, Taxpayers Protection Alliance and Union of Concerned Scientists.

 

Contacts: Tom Devine, (202) 457-0034, ext. 124, TomD@whistleblower.org; Liz Hempowicz ehempowicz@pogo.org; (202) 347-1122;  Shanna Devine, sdevine@citizen.org; (202) 454-5168

 

 

Posted in Press release

RECOGNIZE AND CELEBRATE NATIONAL WHISTLEBLOWER DAY!  

By Stephen M. Kohn, Michael D. Kohn and David K. Colapinto

Co-Founders, National Whistleblower Center

On July 30th, 1778, our Founding Fathers unanimously passed America’s first whistleblower protection law.  This visionary action, taken during the height of the American Revolution, stands today as a testament to the importance of whistleblowing throughout our history.

Just as our Founding Fathers put aside their political differences to support whistleblowers, we must do the same today. On National Whistleblower Day, we should reflect on the historic contributions whistleblowers have made to America’s democracy.  It is a day to remember that laws like the False Claims Act and the Whistleblower Protection Act protect all Americans from fraud, corruption, and retaliation; and it is a day to reach out to members of Congress to remind them to protect these vital laws.

The Founding Fathers enacted a visionary whistleblower law.  They not only passed what very well could be the first whistleblower law in the world, but they also voted to provide attorneys, free-of-charge, to defend whistleblowers unjustly charged with libel.  This exemplary law, which set the stage for future whistleblower laws in the United States, must be celebrated.

Our movement to recognize National Whistleblower Day as a formal day of remembrance throughout the federal government has made much progress since we first uncovered the 1778 resolution and the history behind that law. The Whistleblower’s Handbook chronicled this story in print for the first time.

In 2013, based on these historic findings and tireless advocacy to recognize this important day, the Senate passed the first of numerous resolutions calling upon the federal government to honor and celebrate Whistleblower Day (see resolutions from 2013, 2014, 2015, and 2016).  Another resolution has been introduced for 2017, backed by the entire Senate Whistleblower Caucus, and the Chair and Ranking Member of the Senate Judiciary Committee.  It is expected to pass by unanimous consent. This year numerous whistleblower advocates, Members of Congress and members of the executive branch of government have celebrated National Whistleblower Day in a series of events public events held in Washington, D.C. and elsewhere.

The need for all whistleblowers and champions of whistleblowers to unite and advocate for whistleblower protections has never been greater.  The threats are real:

There is power in history.  No one can deny that support for whistleblowers was central to our Founding Father’s vision of democracy.  This history must be celebrated, and used as a vehicle to change culture and law to continue to empower the courageous men and women who speak out against fraud and corruption. We encourage Congress to move beyond symbolically recognizing National Whistleblower Day, and enact a law mandating that every federal agency recognize July 30th as National Whistleblower Appreciation Day.  This law must require these agencies to call public attention to the significant contributions whistleblowers have made to our Democracy throughout U.S. history and celebrate the contributions and sacrifices of these American hero’s.

The linked column from the New York Times fully recounts the history of National Whistleblower Day, and why we must celebrate July 30th.

A copy of the July 30, 1778 resolution is linked here.

Posted in BLOG

Comey’s Testimony Underscores Need for Strong Whistleblower Protections

 

Comey’s Testimony Underscores Need for Strong Whistleblower Protections – Zuckerman Law

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For me, the most telling moment of former FBI Director Jim Comey’s June 8th testimony occurred early in the hearing, when Mr. Comey choked up as he recalled the White House’s publicly stating that the President had fired him because the “FBI was in disarray.”

This emotional display seemed out of character for Mr. Comey. While U.S. Attorney for the Southern District of New York, he successfully prosecuted organized crime. As Deputy Attorney General during the George W. Bush Administration, Mr. Comey refused to sign an extension of the warrantless domestic spying program and defied the White House Counsel and Chief of Staff. Mr. Comey can fairly be described as a “tough guy.” So how did he go from leading the most powerful law-enforcement agency worldwide to being labeled a “leaking liar”?

To an experienced whistleblower advocate, Mr. Comey’s predicament is not surprising. Mr. Comey’s experience, unfortunately, is like those of many whistleblowers I have represented over more than a decade. President Trump promised to bring a business approach to government—and his retaliation against Mr. Comey is straight out of the corporate defense playbook. Corporations typically take the following steps of escalating retaliation to silence whistleblowers:

Intimidate and Silence the Whistleblower

In his June 8th testimony, Mr. Comey described in detail how the President had asked him to drop the investigation of Michael Flynn and had conditioned Mr. Comey’s job on “loyalty” to him. Senator Rubio expressed skepticism about Mr. Comey’s feeling intimidated by the President and blamed Mr. Comey for not pushing back. But that type of Monday-morning quarterbacking ignored the power dynamics of the conversation. Mr. Comey wanted to keep his job and was understandably reluctant to accuse the President of obstructing an investigation.

Whistleblowers often confront this intimidation tactic in the workplace. A supervisor or senior company official tells the whistleblower to “let it go,” “mind your own business,” or learn to be a “team player.” And in some cases, the whistleblower is told to shut up if he or she wants to remain employed. Threats of retaliation, whether express or implicit, are powerful tools to silence a whistleblower. When a company officer or senior manager orders a subordinate to do something unlawful or to cover up unlawful conduct, holding firm to one’s ethical values is not an easy avenue to follow. As Mr. Comey learned, refusing to carry out an unlawful order may be career suicide, at least in the short term.

Retaliate Swiftly and Severely Against the Whistleblower

Initially, the bizarre method of firing Mr. Comey seemed surprising for a President who perfected the art of firing on his reality show, The Apprentice. Mr. Comey was not given an opportunity to resign; he was not even notified that he had been fired. But now that we know about the President’s real motive for firing Mr. Comey, it’s clear that his tack was deliberate.

Mr. Comey learned of his firing while addressing FBI agents at a Los Angeles field office when the announcement flashed across a television screen. The White House had announced Mr. Comey’s firing without notifying Mr. Comey himself. President Trump sent a loud and clear message to Mr. Comey and to every senior government official about the consequence of disloyalty.

In the corporate workplace, whistleblower-employees are similarly humiliated as a warning to their colleagues. A whistleblower may be escorted out of the office with security guards while other employees are present, pulled out of a meeting and fired on the spot in front of colleagues, or simply fired via text message. When a corporation fires a whistleblower in this humiliating fashion, it ensures that all other employees know the consequence of whistleblowing.

Badmouth the Whistleblower and Their Work History

Firing Mr. Comey in a humiliating and offensive manner served only as phase one. President Trump then defamed Mr. Comey and asserted that he fired him because of chaos within the FBI, as well as the alleged loss of confidence in Mr. Comey among FBI agents.

These statements stand in stark contrast to the President’s repeated, public praise of Mr. Comey before Mr. Comey refused to comply with the President’s “hope” that Mr. Comey drop the investigation of Flynn. Indeed, if President Trump believed that Mr. Comey’s leadership caused chaos within the FBI, then why did the President invite Mr. Comey to continue to serve as FBI Director?

This patent distortion of Mr. Comey’s performance record is an all-too-common experience of whistleblowers. Prior to blowing the whistle, they receive strong performance evaluations and bonuses; they are valued members of the team. But once they blow the whistle and refuse to drop their concerns, they are suddenly deemed incompetent and unqualified for their position. And when a company realizes that it lacks any existing basis to fire the whistleblower, it creates one by subjecting the whistleblower to heightened scrutiny and setting the whistleblower up to fail. For example, a company might place the whistleblower on a performance-improvement plan that contains impossible objectives, and then fire the whistleblower for not meeting those unattainable goals.

This tactic may backfire and enable a whistleblower to ultimately prevail at trial, but the damage to the whistleblower’s reputation is permanent. Prospective employers are reluctant to hire someone who previously fired for poor performance and are especially reluctant to hire a whistleblower. Many whistleblowers never find comparable employment and must accept lower-level positions, earning a fraction of what they did before their wrongful termination.

Attack the Whistleblower’s Credibility

Apparently, President Trump has no evidence to rebut Mr. Comey’s vivid account of the President’s alleged attempts to obstruct justice. So President Trump called him a “liar.”

Desperate to defend themselves at all costs, corporations frequently employ this tactic—labeling the whistleblower a disgruntled former employee who will say anything to win his or her case. So far, this is not working well for President Trump, whose accusation merely serves to shine a spotlight on his own questionable credibility.

Attacking a whistleblower’s credibility is an effective and pernicious tactic in many whistleblower cases. Once expelled from a company, a whistleblower is marginalized and alienated from former coworkers. The key witnesses continue to work at the company and, fearing retaliation, are reluctant to corroborate the whistleblower’s testimony. Though whistleblowers may still prevail (for example, by using documentary evidence), the attack on a whistleblower’s credibility is odious because the company fired the whistleblower precisely for having integrity.

Create a Post-Hoc Justification for Firing the Whistleblower

Prior to firing Mr. Comey, President Trump papered the file with a post-hoc justification for the firing. After the President decided to fire Mr. Comey, Deputy Attorney General Rod Rosenstein was tasked with drafting a memorandum to the Attorney General outlining concerns about Mr. Comey’s performance. Most of those concerns focus on Mr. Comey’s statements about the investigation of former Secretary of State Hillary Clinton’s use of a private email server. Surely President Trump knew of those public statements when he repeatedly asked Mr. Comey to remain as FBI Director (as long as he could pledge “loyalty” and drop the Flynn investigation).

In this case, the White House’s initial reliance on the Rosenstein memo as the basis for the decision to fire Mr. Comey backfired because President Trump told NBC anchor Lester Holt that he had decided to fire Mr. Comey regardless of the memo. In many whistleblower-retaliation cases, however, these types of pretextual memos may be persuasive. Some judges even rely on such memos, which mask the real reason for a firing or other adverse action, to grant the company summary judgment and deny the whistleblower a jury trial.

On the other hand, creating a post-hoc justification for a retaliatory adverse action sometimes misfires by providing strong evidence of pretext and spurring a jury to award punitive damages. For instance, a former in-house counsel at Bio-Rad Laboratories recently secured more than $11 million in damages at trial in a Sarbanes-Oxley whistleblower-retaliation case. The jury awarded $5 million in punitive damages because Bio-Rad had backdated a negative performance evaluation of the whistleblower that the company drafted after it fired him.

Focus on the Whistleblower’s Alleged Misconduct

To distract attention from what may be obstruction of justice, President Trump and his attorney have focused on Mr. Comey’s leak to the press and have alleged that the leak was unlawful. This accusation seems frivolous because Mr. Comey did not leak classified information, grand jury material, or other sensitive information. Instead, he revealed that President Trump had conditioned his continued service as FBI Director on his agreeing to drop the investigation of Flynn. As a private citizen, Mr. Comey has a constitutional right to blow the whistle to the media about this matter of public concern. Mr. Comey did not reveal to the media information from FBI investigative files or classified information. Yet President Trump and his allies compare Mr. Comey to leakers who illegally disclosed classified information. This is an appalling accusation against the former head of a law-enforcement agency.

But this is another standard corporate defense tactic in whistleblower cases. To divert attention from the wrongdoing that the whistleblower exposed, the company uses its substantial resources to dig up dirt on the whistleblower. The company or its outside counsel examines the whistleblower’s timesheets and expense reports with a fine-tooth comb to find any discrepancy, reviews every email to find some inappropriate communication, and places all of the whistleblower’s work under a microscope to find any shortcoming.

Sue the Whistleblower and Initiate a Retaliatory Investigation

Firing Comey, concocting a pretextual basis for the firing, and branding him a leaking liar apparently was not sufficient retaliation.  So shortly after his testimony, President Trump’s personal attorney announced his intention to sue Mr. Comey and/or file a complaint with the Department of Justice Office of Inspector General (OIG).  I am skeptical that a civil action against Mr. Comey or an OIG complaint poses any real legal threat to Mr. Comey.  To the contrary, such a complaint would likely pose a greater risk for President Trump, including potential counterclaims and the risk of being deposed or questioned under oath by the OIG.

The misuse of legal process against corporate whistleblowers, however, is an especially powerful form of retaliation in that it can dissuade a whistleblower from pursuing their claims.  When I defend against this form of abuse of process, I am always struck at the seemingly endless resources that the company will spend to prosecute claims lacking any merit or value.  Fortunately, these claims can go awry by spawning additional retaliation claims under the whistleblower protection laws.  And a jury can punish the employer for subjecting the whistleblower to abuse of process.

Why Whistleblowers Deserve Strong Legal Protection

In light of Mr. Comey’s distinguished record, he will likely bounce back and rebuild his career. But most corporate whistleblowers never fully recover. Too often they find their careers and reputations destroyed. Even when whistleblowers obtain monetary relief at trial, they are usually blacklisted from comparable positions, especially if they work in a small industry.

Mr. Comey’s experience as a whistleblower is a stark reminder of what can happen to any employee who is pressured by a powerful superior to engage in unlawful conduct or to cover up wrongdoing. When intimidation tactics succeed, the public suffers. The company could be covering up threats to public health or safety, environmental contamination, financial fraud, defective products, or any other conceivable harmful wrongdoing.

Courageous whistleblowers who put their jobs on the line deserve strong protection. As Congress embarks on a mission to gut “job killing” agencies, let us hope it will spare the very limited resources that are spent enforcing whistleblower-protection laws. Without such a large backlog of whistleblower cases, OSHA could have, for example, addressed the complaints of Wells Fargo whistleblowers years ago, potentially curbing or halting the bank’s defrauding of its customers. And Congress should consider filling the gaps in existing whistleblower laws. If Mr. Comey “lacked the presence of mind” to explicitly reject the President’s improper demand for him to drop the Flynn investigation, then surely most employees would also be reluctant to refuse an order to commit an unethical or unlawful act.

After Mr. Comey’s testimony, Speaker Ryan pointed out that “[t]he President’s new at this. He’s new to government.” Mr. Comey’s testimony should be a lesson for the President about how to treat whistleblowers. To make America great again, the President should abandon the Rambo litigation tactics that apparently served him well in New York real-estate disputes, and instead view whistleblowers as allies, not as enemies. As Tom Devine of the Government Accountability Project and I argue in an article in the Emory Corporate Governance and Accountability ReviewDraining the Swamp Requires Robust Whistleblower Protections and Incentives.

Jason Zuckerman represents whistleblowers nationwide in whistleblower rewards and whistleblower retaliation claims.  Recently Matt Stock and Zuckerman issued an ebook titled SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Posted in BLOG

American Small Business League Fights to Stop the Government from Cheating Small Businesses out of Millions.

The American Small Business League (ASBL) fights to stop the Government from cheating small businesses out of billions.

ASBL has been granted a trial date of 12/11/2017 for their case against Sikorsky Aviation. The case seeks the disclosure of contracts Sikorsky Aviation received through a 27 year old Pentagon test program that was built to remove all transparency and accountability for the participating contractors. According to Professor Charles Teifer, one of the nation’s leading experts on federal contracting law, there has never been a trial for a FOIA case before, making Sikorsky’s resistance to transparency in the case unprecedented.

Small businesses have lost billions of dollars in government contracts due to the fact that the program allows the Pentagon’s biggest contractors to circumvent federal contracting law. A 2004 Government Accountability Office investigation[gao.gov] of the test program found no evidence the test program had ever increased subcontracting opportunities for small businesses. A story in Gov. Exec[govexec.com] questions the future of the program.

Here is a link to the latest story on our case in Government Executive: http://www.asbl.com/showmedia.php?id=2791[asbl.com]

Here is a link to our documentary on our fight for government accountability: http://www.asbl.com/showmedia.php?id=2775

Questions? Contact: Kyle, khilmoe@asbl.com

Posted in BLOG

Coalition Praises Senate Action Adding Disciplinary Teeth to the Whistleblower Protection Act

Senate Unanimously Approves S. 585, Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017

WASHINGTON – The Make It Safe Coalition (MISC) Steering Committee praised May 25 Senate action by unanimous consent approving S. 585, the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017. Dr. Kirkpatrick was a whistleblower who challenged excessive prescriptions at the VA Medical Center in Tomah, Wisconsin and took his own life after being fired.

It expands to the entire civil service stronger rights and disciplinary accountability teeth that Congress passed last year for Department of Veterans Affairs (VA) employees. MISC leaders praised it as a breakthrough to deter retaliation.  Senator Ron Johnson (R-WI), Chairman of the Senate Homeland Security and Governmental Affairs Committee, sponsored the legislation.

The new law strengthens whistleblower protection from three angles:

*Stronger discipline penalties: The bill expands the “two strikes and out” rule that requires the VA to propose discipline for whistleblower retaliation or other prohibited personnel practices violating the merit system. After a finding by the U.S. Office of Special Counsel (OSC), VA Office of Inspector General (OIG), U.S. Merit Systems Protection Board (MSPB) Administrative Judge (AJ) or higher authority, a first offense would trigger a mandatory agency-proposed three-day suspension. A second offense would require proposed termination. The manager would retain MSPB appeal rights the same as for any other alleged misconduct.

Until now the chances of discipline for retaliating against whistleblowers has been between token and non-existent. Only the U.S. Office of Special Counsel can seek sanctions, and it seldom acts due to higher burdens of proof than necessary for remedial actions to “stop the bleeding.” Under S. 585, the whistleblower could seek discipline directly from a series of authorities, not all even requiring litigation. The OSC no longer would have to prosecute. Its investigative finding of prohibited personnel practice automatically would create sanctions.

*Expanded protection: The bill also makes unauthorized access to medical records a formal personnel action, creating liability under the WPA and civil service law for any prohibited personnel practice. This type of privacy violation has been a common tactic to find derogatory information on whistleblowers. Unlike last year’s VA reform, however, the bill does not expand personnel actions to include any retaliatory investigation. Unauthorized access to medical records is only one of the many forms of retaliatory investigation.

*Expanded training: The legislation also would require annual training in whistleblower laws for all supervisors and employees alike. Since few in either category are aware of merit system rights, improved training could have as much impact preventing retaliation as sharper disciplinary teeth.

MISC leaders offered the following comments on the legislation:

Tom Devine, Legal Director of the Government Accountability Project, was enthusiastic about the legislation as far as it goes, but urged further action.

If the House follows through, this bill will be an accountability breakthrough by closing a functional disciplinary loophole since 1978. For the first time bureaucratic bullies will have something to lose by retaliating. For all practical purposes, currently the worst that can happen now is that they won’t get away with it, and they likely will be rewarded for doing the dirty work. Hopefully the House will expand the personnel action for unauthorized medical access to include all retaliatory investigations, as it did last year for VA whistleblowers. Whistleblowers should be protected from all witch-hunts, not just those involving their medical records.

Emily Gardner, Worker Health and Safety Advocate of Public Citizen, said:

We commend Congress for taking action to protect whistleblowers when they bravely expose waste, fraud, and abuse within the VA. This bill is a step in the right direction and will serve as an important tool for ending retaliation against whistleblowers. Lawmakers should further strengthen the bill by prohibiting all retaliatory investigations against VA whistleblowers and pass this critical good government measure without delay.

Pete Sepp, President of the National Taxpayers Union, said:

When it comes to fiscally accountable government, whistleblower protection is taxpayer protection. Senator Johnson deserves a big round of applause from the people who pay government’s bills. His legislation recognizes that changing the bureaucracy’s attitude requires real consequences for federal supervisors who retaliate against whistleblowers.

Contact: Luke Drabyn, Communications Associate, GAP
Phone: 202.457.0034 ext. 130
Email: luked@whistleblower.org

Contact: Jenn Fedor, Communications Director, National Taxpayers Union
Phone: 703.582.2433
Email: jenn.fedor@ntu.org

Contact: Angela Bradbery, Director of Communications, Public Citizen
Phone: 202.503.6768
Email: abradbery@citizen.org

The Make It Safe Coalition

The Make It Safe Coalition is a nonpartisan, trans-partisan network of 50 good government, taxpayer, scientific, labor, civil liberties, and law enforcement organizations dedicated to strengthening protections for whistleblowers in private and public sector who protect the public by exposing waste, fraud and abuse in government.

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