'If You Can Keep It': Weakening Whistleblower Protections

0:07You're listening to the 1A Podcast. I'm Jen White. And I'm Todd Zwilich. How does the public know what's happening in the federal government, especially when it's information the government doesn't want to get out? That's where whistleblowers come in. They play a vital role in our democracy. Last week, Erez Ruvani, a former Justice Department official who was fired in April after filing a whistleblower complaint with the agency, spoke out. The Trump administration has put civil servants in this impossible position of fealty to the president and the agenda or fealty to uphold the Constitution and to uphold the rule of law.

0:44And time and time again during those three weeks, I was put to the question, which side am I going to be on? And ultimately, I mean, I didn't sign up until I do a court. And that's the position I was put in and that's the position others are being put in. And that's why I've come forward. That was from the New York Times podcast, The Daily. Ruvaini has said that Emil Bove, Justice Department official and Donald Trump's former personal lawyer, essentially ordered Justice Department officials or suggested that they should violate court orders. Now, you heard about Ruvaini here on the show last week when we covered Bove's nomination to the Third Circuit Court of Appeals that is currently in front of the Senate.

1:23But the Trump administration is cracking down on whistleblowers like Ruvaini and the journalists who are telling their stories. So for today's installment of our politics series, If You Can Keep It, We discuss weakening whistleblower protections under President Trump and what this means for the public who relies on the information they share. That and more right after this. Stay with us.

1:48Let's start the conversation by meeting our guests. Joining us in studio is Lauren Harper. She's the Daniel Ellsberg Chair on Government Secrecy at the Freedom of the Press Foundation. That's a nonprofit organization that funds and supports free speech. Lauren, it's always great to have you. Thank you for having me. Also with us is Hampton Dellinger. He's the former special counsel at the U.S. Office of Special Counsel. That's an independent watchdog agency. President Trump fired Dellinger shortly after he took office. Hampton, welcome to the program. Thank you. Good to be with you. And we should note that we reached out to the White House for a statement, but they did not respond to our request for comment.

2:25Lauren, let's just start with the very basics. How do you define a whistleblower? Sure. A whistleblower is somebody who reveals wrongdoing. They can be raising concerns about violation of law, waste, fraud, or imminent threats to public health or public safety. And in the context of the federal government, depending on the type of employee and the information at issue, these can be disclosed in a number of ways. Employees can go through their internal agency mechanisms, for example, the Inspector General's office. They can go to the Office of Special Counsel, which we'll hear more about. They can also go to members of Congress and the press.

3:00Now, Hampton, you led the Office of the Special Counsel, and this is an independent watchdog agency. What's the difference between a whistleblower and a watchdog? Well, I will say the Office of Special Counsel was an independent watchdog agency. I don't think we can say that going forward. Watchdogs are different than whistleblowers, but they're inextricably intertwined. So as the head of a formerly independent watchdog agency, I would receive allegations from federal government employees of violations of law or other serious wrongdoing. And if I found them credible, I could initiate an investigation into those allegations.

3:39And I could also make sure that whistleblowers weren't retaliated against for speaking up. Hampton, you said formerly independent. What's changed? Sadly, I think everything. This office that I led and the inspectors general, who were also summarily fired, despite their incredible capability and success on behalf of the American taxpayers, for 50 years had had legal statutory protections so that they could be, particularly my former agency, Office of Special Counsel, a safe space for whistleblowers to come to who had been ignored or even worse retaliated against within their agencies. So the president decided to overturn laws on the books for more than half a century.

4:27The courts have not stopped him. And so it's a different, it's a completely different environment that we're in today. Hampton, you were fired by President Trump shortly after he took office. What happened? I was part of a mass set of firings of watchdogs, formerly independent watchdogs across the federal government. So dozens of inspectors general for particular agencies who are really my partners in making sure that wrongdoing was detected and deterred. They were fired in a Friday night massacre. My firing came a couple weeks later. I contested it in court because I had been part of an independent agency for over 50 years.

5:11It had been independent, and the courts ultimately let the president get what he wanted as soon as he wanted it. I think that was unfortunate, but I recognized the reality and stepped down. Lauren, as someone who closely watches press freedoms and protections or lack thereof for whistleblowers, what's been your reaction to what we've seen in these first seven months of the Trump administration? The big picture issue that I see in this interplay between retaliation against federal workers and whistleblowers and the way the Trump administration treats the press is this. It appears to me that the Trump administration is trying to portray investigative journalism, news gathering, and First Amendment protected right to free speech as threats to national security.

5:58And this is an extremely dangerous situation, and it inherently undermines some of the most important pillars of our democracy. Anthony writes, I was fired from a job back in 2010. We were on mandatory overtime with a hiring and promotion freeze. I was working 16 to 18 hours a day. After being fired, I applied for unemployment, which the company fought. But when the arbiter heard about the work conditions, I was granted my unemployment. I wish more workers in the U.S. had the capacity to speak out against their employers. This is a very important way for citizens to know what's really going on behind the scenes in government.

6:30We'll be right back.

6:36Let's get back to our conversation with this message we got from one of you. I reported a principal in my school for drinking on the job. I was hit with harassment charges by that principal. While I was absolved of all charges, the thing I realized was that human resources was there to protect a business and not to support the humans in the building. I continued in the job for another year before I realized she would make my life miserable. Lauren, we're talking about whistleblowers, but there are people who are part of our government apparatus who are tasked with keeping track of what the government is doing.

7:15People like members of the Office of Special Counsel or inspectors general. So when we see this crackdown on whistleblowers, what type of chilling effect does that have across our government? There was an article over this weekend in the New York Times. the title was something to the effect of watchdogs are now watching their backed. And this was about the fact that the Trump administration has fired upwards of 20 inspectors general across the country. So we're seeing the folks who remain in those offices and in acting positions being reluctant to take on investigations about a whole host of important topics.

7:52For example, the acting inspector general at the USAID reportedly declined to release final reports on what would happen if the U.S. withheld aid from places like Gaza out of fear of increased retaliation against the agency. And this issue of whether or not inspectors general are capable of investigating the waste, fraud, and abuse complaints that are brought to them is especially important within the intelligence community because members of the intelligence community are not protected by the Whistleblower Protection Act. So in the intelligence community, the system for reporting wrongdoing is pretty opaque.

8:29There is not an independent arbitration process. So typically what you have to do is you either go to the head of your agency or you go to the Inspector General of the Intelligence Community. Unfortunately, Tulsi Gabbard, who's the Director of National Intelligence, recently placed one of her top aides in that office, raising concerns that that office is also no longer independent. And so this issue of what whistleblowers and the intelligence community can do is especially precarious because when you're dealing with classified information, you are not protected if you go to the press. So this makes it much more dangerous.

9:06We had an example in the news just last week. People remember SignalGate, the signal chat that involved Jeffrey Goldberg of the Atlantic and the defense secretary, the national security advisor, and all the others. At the time, as we talked about on 1A last week, the defense secretary angrily said, nobody shared classified information. Well, the defense Department IG, Inspector General, came out last week and said, indeed, the document that the Secretary of Defense used to write that signal chat was marked secret, leading the public to be aware that it looks like the Secretary of Defense lied to everybody.

9:42Yes, exactly. And, you know, there's also been this suggestion and threat raised at places like the Defense Department and the FBI in response to disclosures around things like SignalGate to start using polygraph tests to root out leakers who embarrass the administration in various capacities. And that's now been stopped at the direction of the White House, according to reporting from the Washington Post. But it's important to point out, Lauren, the accuracy of these tests. What do we know? So polygraph tests are not really effective at detecting a lie. What they detect is your perceived level of threat and stress, which leads to a lot of false positives.

10:26They can be useful in certain situations, but they're certainly not a foolproof way to root out what you don't want or leakers at an agency. It's an intimidation tactic, and it's one that's extremely unreasonable to roll out at an agency like the Defense Department, which is the largest agency in the federal government. There's also just not the capacity to do that. It's an impractical threat. So Hampton, as someone who led an agency that operated as a fact check on the federal government, how do tactics like lie detector tests affect the work culture for federal employees? They have an absolute chilling effect.

11:00I think they're very problematic, and I think they're illegal or can be illegal in certain instances. federal law still says that you cannot try to chill whistleblowing activity through any particular practice or policy. And so because whistleblowers retain their rights to go to Congress, to go even if compromised to inspector general's offices or my old office, Office of Special Counsel, and to go to the media with reports of lawbreaking and wrongdoing, the use of polygraph tests, I think, clearly deters that lawful activity. And so I think the widespread use of these tests deserves its own investigation by Congress and by IGs.

11:47There is the Whistleblower Protection Act that defines what a whistleblower is, Lauren, not just somebody who rats on their boss. It actually has a legal protection that we can talk a little bit more about. But Janelle asks, and this is for you, Lauren, is there any language in the Constitution that might be directly applied to protecting whistleblowers? Free speech. Free speech. I mean, it's a constitutionally protected right to free speech. Yes. Hampton, how is this administration's approach to whistleblowing different or perhaps similar to the approach we've seen from other administrations?

12:19I think it's night and day from what we've seen before. My predecessor, my direct predecessor, was a Republican who served throughout the Biden administration and did his duty, did his job. His name is Henry Kerner, and he was really admirable in his approach. I tried to continue that. I did not have any fear or favor of the Biden administration, even though I was appointed during the Biden administration. I tried to just follow the law and the facts. And so it is very different after 50 years of respect for independent watchdog agencies. The other thing I think that's changed, sadly, is Congress.

13:04You have someone like Senator Chuck Grassley, who is supposed to be a great friend of whistleblowers, who is not speaking up on behalf of the brave whistleblowers who are speaking out now. And I think that's unfortunate. Lauren, your thoughts? Well, I think I take Hampton's point, but I think that there have been instances under both Democrats and Republicans of not being as respectful of whistleblowers as we would hope. The Obama administration, for example, used the Espionage Act more often than any of his predecessors combined to go after whistleblowers and indeed after news organizations like AP and Fox News.

13:42but I completely agree with Hampton that what we are seeing by this administration is markedly different. And just again, I want to note that we reached out to the White House for a statement. They did not respond. We got this message from Valerie, who says, as the only woman at a former job, I spoke up a lot about harassment. I talked to everyone up the chain of command. All it did was make the constant harassment even worse. After I talked to the top boss, I gave up because I needed the job. One of my bosses always told me to keep my head down and my mouth shut. And after years, I finally complied.

14:16I wish I left that job before I became disabled due to injuries sustained on that job. I wish I found my self-respect before I lost everything. We also heard from Pam, who says, years ago, I worked in a coat hanger factory. Some of the hangers were sprayed with an adhesive without any ventilation system or protection for the workers. When I heard of some of the women complaining of headaches, I contacted the Occupational Safety and Health Administration and was given a petition. When I asked the workers to sign the petition, they were fearful of losing their jobs. They were, however, protected, according to OSHA.

14:46They were single mothers. I was a college student and had nothing really to lose. After word got out that this petition was going around, a ventilation hood was put in place. I am glad that I did what I did. I want to ask a big picture question here, Hampton and Lauren, about the impact on everyday Americans. When we see whistleblowers being attacked, when we see journalists attacked for investigative reporting, does it have a broader impact on people's willingness to speak up or trust that agencies like OSHA that are tasked with protecting workers will actually come to their defense. Lauren? I think there's no way that it doesn't have a chilling effect, but I also think when we look at the Trump administration, we can see so many impactful examples of people who do choose to speak up.

15:39When I think about the things that we know from the Trump administration as a result of whistleblowers, most of the information that we know about the Department of Government Efficiency, for example, is a result of whistleblowers. We have learned that the intelligence community has disagreed with the Trump administration in several high-profile instances, and we know most of what we know about what's going on with immigration proceedings, particularly ICE, as a result of whistleblowers. And I think ICE is an excellent example of the importance of continuing to speak up as agents in the field start to wear masks, as the agency tries to limit lawful congressional oversight, and even as ICE lawyers start to withhold their names during immigration court proceedings, this creates an environment where misconduct can thrive and where we continue to need whistleblowers and expanded protections for what they share.

16:29Hampton, your thoughts? It is vital that all of us support government whistleblowers. It's not just for them and their jobs, although it's important. It's for the services they provide, the firefighters out west, the nurses at the VA, the air traffic controllers, FEMA in the wake of disasters. And if the government that we pay for isn't functioning, if people in the government aren't following the law. That hurts us all. But it is absolutely daunting to think about being a whistleblower in this environment. And I think we need to be all prepared to support them as they have to look for new jobs.

17:08Often they may face security threats. And so it's up to the American public to support those who are willing to speak out. Let's go back to our inbox. Yeah, I worked in government for 44 years, and there were a couple times where we noticed a lot of corruption. And we documented with all the data collection to build a really strong case. And then on the whistleblower system, they notify the head of the department. And what we didn't know was that the head of the department was just as corrupt as the others. So when we presented our case, the head of the agency took off his glasses, leaned forward, and said, you mean to tell me that you've been documenting all this data?

17:53I should fire you. Thanks for that message. That's precisely what the Whistleblower Protection Act is for, for when the boss leans forward and says, oh, speaking up, you're fired. So whistleblowers, Lauren, can use internal whistleblowing channels like this caller who just told us their story. within their agency. They can go to the press, which is extremely important for democracy to get the word out so that people know what their government is doing. What's the difference between these two channels, going up the chain of command versus going to a journalist? The biggest difference, I think what whistleblowers have to ask themselves when they're deciding which route to go is which route is going to be the most effective at getting something done about the information that I have.

18:38Another big difference about which channel you pursue in terms of internal versus external is what protections exist for you. And I've mentioned this a couple times, but one of the biggest differences is there are no protections for leaking classified information to the press. This is an especially big deal during the Trump administration because we know that the Trump administration is eager to use something called the Espionage Act to go after not only sources, but also the reporters who report on their sources. and this is a direct threat to investigative reporting. Why might a whistleblower go to the press with information instead of reporting it to their agency, considering the risks they face?

19:21I think a lack of trust that the agency is going to do anything about it, and I think that's something that's heightened by the fact that we've seen so many political firings across agencies, including an inspector's general, including at the Office of Special Counsel. Hampton, walk us through the process of using internal whistleblowing channels in the federal government? What would an employee experience? They could start with their inspector general. And while those offices are no longer independent in the way they have been, they still have really well-meaning, hardworking career employees who are going to follow the law to the fullest extent they are allowed to.

20:00And there's also the avenue of going to my former agency, the Office of Special Counsel. But again, that agency is no longer independent. I do think it's important for any federal employee considering being a whistleblower to try to get good, free legal advice. And there are a number of nonprofit groups that have stepped forward to try to assist government employees. GAP, the Government Accountability Project, whistlebloweraid.org, democracyforward.org. There are resources available to get the advice that you need as a potential whistleblower. There are also categories of federal employees that do not fall under the Whistleblower Protection Act.

20:40We've mentioned intelligence community employees. There's also military personnel, political appointees, and contractors, which is going to be an especially important gap going forward as we look at agencies that are seeing reductions in force start to use more and more contracting services, especially places like ICE. It's important to have whistleblower protections extended to contractors as well. Whistleblower protections, though, in the Whistleblower Protection Act, we've gotten some questions about what applies when you're a legally protected whistleblower. Again, just ratting out your boss and saying, oh, he lied in a meeting, not a whistleblower.

21:15What qualifies you legally as an official whistleblower? Protected disclosures, the kind of information that the law protects, is violations of law, waste, fraud, abuse, and imminent threats to public health and public safety. We'll be back with more from our guests and from you in just a moment.

21:37Hampton, you mentioned Senator Chuck Grassley just a few moments ago. Let's talk about him and his role. Just last week in a letter to President Trump, Republican Senator Chuck Grassley, he's from Iowa, said it's important that the federal agencies aren't using this downsizing initiative as an excuse to retaliate against federal workers who've made protected whistleblower disclosures. If that has happened, this would not only be unlawful, but would also have a severe chilling effect on federal employees who would otherwise blow the whistle. Now, that's the chilling effect that we've been talking about.

22:14Senator Chuck Grassley has a reputation, or at least he did, as a real defender of whistleblowers all across the government. What do we know about the relationship between the people being fired from the federal government and those who filed whistleblowers complaints? Well, I think there's a lot we don't know, and hopefully time will allow for a record, a public record of what is happening. I'm certainly grateful for Senator Grassley's most recent statement. He has had a deserved reputation over the years as someone who has defended whistleblowers in the federal workforce. But this is a moment unlike any I've seen in my professional lifetime with a crackdown on whistleblowers, retaliation, chilling of their speech.

23:02And so I think it is more important than ever that there be bipartisan support from senators like Chuck Grassley, Ted Cruz, I also worked with when I was in office, as well as Democrats like Senator Wyden, who've been leaders on whistleblower protection. This is the moment for everyone to speak with one voice that whistleblowers should not be retaliated against and have rights that are vital to vindicate. But Lauren, beyond statements or letters to the president, what more could Congress do to shore up protections for whistleblowers? Yeah, we're talking about Chuck Grassley, who has a longstanding history of support for whistleblowers, but there's a real selectiveness on Congress's part about which whistleblowers they defend.

23:46For example, during Tulsi Gabbard's nomination hearing, both Democratic and Republican senators spent a lot of time trying to get Gabbard on the record as saying that Edward Snowden, who's on FPF's board, was a traitor for revealing unlawful global mass surveillance. So there is still this bias towards internal whistleblowing mechanisms and a bias against folks who go to the press. But I think that there are a couple significant things and tangible things that Congress could do to shore up support for whistleblowers, expand whistleblower protections to contractors. You could also address the Espionage Act.

24:24You could close loopholes that make it impossible for whistleblowers to defend themselves. And you could limit those kinds of prosecutions to actually challenging real spies. We should also say, I would just like to add in terms of Congress's power here. We shouldn't sleep on the fact that Congress has the ultimate power. If lawmakers of both parties really wanted IGs across the government restored to their job, they could say no government funding until IGs are restored. Do it or no money. They could do it. They're not doing it. Yeah. And this is something that, again, vacancies within inspectors, generals is not a problem that's unique to the Trump administration.

24:59In the Biden administration, I think there was a vacancy, I forget which agency, that had gone on over 700 days. So yes, there is more that can be done, and it's also not uniquely a problem of the Trump administration's. But we are seeing the Trump administration take advantage of those loopholes in ways that are new. So when we say, I just want to be clear, when we say protections for whistleblowers are weakening, Lauren, are we talking about actual laws changing, or are we talking about the ability to successfully apply those laws weakening under this administration? We're talking about the integrity of the system, absolutely.