President Obama’s Whistleblower Legacy

Now that Donald Trump is officially the 45th President of the United States and a new administration has commenced, wouldn’t it be nice if all federal employees (including intelligence agency employees) had the right to a jury trial in federal court on their whistleblower retaliation cases?

President Barack Obama promised to support that essential reform to the Whistleblower Protection Act (WPA) when he ran for office.  In 2007, candidate Obama answered “yes” in response to a survey from the National Whistleblower Center (NWC), which asked: (1) “Do you support protecting whistleblowers under the framework of H.R. 985 (which passed the House on March 14, 2007 by a vote of 331-94)?” and (2) “If elected, do you promise to advocate for the passage of a law which would give employees who are illegally terminated for blowing the whistle the same procedure and substantive protections as other wrongfully discharged employees under laws such as Title VII of the Civil Rights Act of 1964 (i.e., the law that prohibits discrimination on the basis of race or sex?”

In fact, H.R. 985, which passed the House of Representatives with overwhelming bipartisan support, fixed a number of problems with the WPA and provided for access to federal court and jury trials for all federal employees.  Had H.R. 985 become law, it also would have extended those same whistleblower protections to employees who worked for intelligence agencies and the FBI.

Nine presidential candidates said in 2007 that they supported the whistleblower reforms contained in H.R. 985.  The New York Times also published an editorial in December of 2007, noting there was bipartisan support in Congress to enact these reforms and urging Congress to pass the strongest possible whistleblower reforms for federal employees.  However, the Senate failed to act on the House bill before it went home in 2008.

So it was up to President Obama to fulfill his promise to support enactment of the sweeping whistleblower reforms that passed the House by a 331-94 vote in 2007.  After all, as a candidate, President Obama had supported the WPA reform bill, and his own party had won control of the Senate and maintained control of the House in November of 2008.

The very first bill introduced in the House in January 2009, H.R. 1, was the massive stimulus spending bill that President Obama requested to help fix the economy and avoid another Great Depression.  Notably, House Speaker Nancy Pelosi allowed the text of H.R. 985 from the prior Congress to be attached as House amendment 20 to H.R. 1.  When the stimulus bill passed the full House on January 28, 2009, the whistleblower reforms from H.R. 985 were included and it went over to the Senate for approval.

Due to a fluke of history, the election of Al Franken to the Senate was delayed through a recount and legal challenge by his opponent, Senator Norm Coleman.  That delay meant that President Obama needed two Republicans in the Senate to overcome a Republican filibuster and pass the stimulus bill with 60 votes.  Had the outcome of Senator Franken’s election been decided promptly the President would have needed only one Republican to vote for the stimulus bill.

Senator Susan Collins was the second Republican to signal support for the stimulus bill, but her support would come at a heavy price.  In order to obtain Senator Collins’ support the President was required to agree to a list of her demands, which included either gutting or cutting House Amendment 20, the whistleblower reforms, attached to the stimulus bill.

As reported by TPM Muckraker, on February 11, 2009, Senator Collins wanted to “drastically water down” the WPA reforms, “citing national security concerns as the reason for her opposition. In the end, the protections were so weakened that House negotiators balked, and the result was that the entire amendment was removed.”

The promise of court review and jury trials (like under Title VII) after exhaustion of administrative remedies was an essential WPA reform necessary to make whistleblower laws effective for all federal employees (including intelligence agency and FBI employees). But after Senator Collins became the deal maker on the 2009 stimulus bill, her opposition to the WPA whistleblower reforms killed the measure.

Instead of a fast victory for whistleblowers, by passing a WPA reform bill that had passed the House with wide bipartisan support several times, the Senate, once again, refused to agree to enact these important reforms.  It should be noted that the Senate bills aimed at the issue failed to include many of the most essential reforms, such as court access and jury trials for all federal government employees.

Surprisingly, after the stimulus bill was passed without the WPA reforms, the Obama administration did not keep its promise to support the reforms contained in H.R. 985.

This broken promise would later haunt the Obama administration.  Imagine if strong whistleblower rights, including court access and jury trials in whistleblower retaliation cases, had been enacted during the first term of the Obama administration.

President Obama’s point person on the WPA reforms, was Norm Eisen, White House ethics counsel or “Ethics Czar.”  Eisen, who was later appointed U.S. Ambassador to the Czech Republic by President Obama, now works as a fellow for the Brookings Institution and heads the board of Citizens for Responsibility and Ethics in Washington (CREW).  Esien is a frequent critic of President Trump’s ethics and he signed a complaint filed by CREW in federal court yesterday alleging that President Trump is violating the emoluments clause of the Constitution.

During the Obama administration, however, instead of listening to the whistleblower advocacy groups and federal employee labor unions, and fulfilling President Obama’s campaign promise on WPA reform, Obama’s Ethics Czar was lobbied by career managers and general counsel offices within the federal bureaucracy and the intelligence agencies, as well as the Department of Justice, which did everything in their power to kill the essential WPA reforms that had been passed by the House in 2007, and which Obama promised to support if elected.

At a meeting held in the Old Executive Office Building between Obama administration officials and whistleblower advocates Norm Eisen was questioned as to why the administration was breaking its promise on WPA reforms.  Eisen acknowledged that the administration was breaking its campaign promise.

By the time the government whistleblower reform laws made their way through Congress starting in February of 2009 and until December of 2012, the Obama administration had quickly shifted from supporting the jury trial/court access reform to arguing that administration processes without court and jury access would suffice, despite a mountain of statistics that refuted their claims.

To make matters worse, the White House helped draft an entirely new Senate bill that drastically weakened the House WPA reforms of H.R. 985.  A new White House-supported Senate bill created new legal hurdles for federal whistleblowers that if passed would have made the reform unworkable and useless.  Instead of clarifying what is a protected whistleblower disclosure the Senate bill created new convoluted hoops for whistleblowers to jump through to gain protection, such as adopting an agency-friendly definition of protected disclosure, introducing new barriers that did not previously exist in federal employee whistleblower appeals, such as summary judgment at the Merit Systems Protection Board (MSPB), very limited court access to a jury only with permission of and deference to the federal bureaucrats, higher burdens of proof for employees, the exclusion of intelligence agency employees from the bill’s protections and proposing extremely chilling “star chamber” type procedures, and further weakening already weak whistleblower protections for FBI employees, among many “poison pill” provisions.  The list of harms in the Senate bill that was supported by the Obama White House are too numerous to mention here, but were blogged on extensively by Stephen M. Kohn in a 12-part blog series in 2009.

Behind the scenes the White House and the intelligence agencies also repeatedly persuaded their allies on the House and Senate intelligence committees to sabotage any efforts to extend real legislative reform to intelligence agency whistleblowers.

As a result of the Obama administration’s about face, the strong whistleblower reforms that were promised in the election could not be enacted at all for federal employees.  Instead of upholding an important campaign promise made in 2007, the Obama White House worked hard against enacting that very promise.

This heated debate took place, mostly behind closed doors in Congress, a full 2-3 years before Edward Snowden emerged. When the watered down WPA reforms were finally enacted in December 2012 the most important reform (court access and jury trials for all federal employees) was left out of the law and no new whistleblower rights for intelligence agency were enacted.  To add insult to injury, in late 2012, at the urging of the same intelligence community opponents of strong whistleblower reforms, the Congress also stripped existing whistleblower rights for government contractors to prevent any whistleblower protections for contractor employees who blew the whistle on fraud, waste and illegality if it involved a government contract with an agency of the intelligence community.

As Steve Kohn wrote about President Obama’s broken promise in September of 2009, in part 12 of his blog series on the Senate bill (S. 372), “when the next disaster hits – and it turns out there was a whistleblower trying to warn the public before people were hurt – will President Obama be able to stand before the voters and say that he did his best, that he fulfilled his promise?  Or will he be accused of abandoning the courageous employees who tried to ‘do the right thing?’”

It didn’t take long for Kohn’s question to be answered.  What would Edward Snowden have done in 2013 had President Obama fulfilled his promise and strong whistleblower protections had actually been enacted to protect employees in the intelligence community?

Could what has popularly become known as Obama’s “War on Whistleblowers” been avoided or at least tempered had President Obama kept his promise to support the strong whistleblower reforms included in H.R. 985?

As these fights over the WPA reforms played out in Congress over several years the Obama administration vigorously prosecuted brave intelligence agency whistleblowers who “committed truth” by informing the American people about crimes that had occurred in secret by the CIA, NSA and other intelligence agencies. These included public disclosures of the government’s illegal mass electronic surveillance that invaded the privacy of most Americans as well as torture and murder in the so-called war on terrorism and fraud and waste in intelligence agency contracts. Instead of being provided a safe channel to report law breaking by the intelligence community, as originally promised in 2007, these whistleblowers could no longer wait for the failed system of laws to be fixed and most decided to act out of conscience and make disclosures to reporters to inform the American people about these crimes and abuses.  Instead of being protected under the law as whistleblowers, they were prosecuted as leakers and charged with violations of various statutes, such as the Espionage Act and other laws to protect classified information.  That is a big part of President Obama’s mixed whistleblower legacy that cannot be ignored.

After several years of in-fighting in Congress, and a split in the whistleblower community, the controversy over the harmful Senate bill that the Obama White House had supported and helped to create, was resolved in late 2012.  However, only a heavily watered down version of the WPA reform bill promised by the candidate was enacted.  Most of the poison pill provisions that the Senate had inserted at the White House’s urging were removed from the bill that was finally passed in December of 2012, but the court access and jury trial provisions and all reforms for intelligence agency or FBI employees were entirely removed from the bill that became law.

To be sure, the Obama administration made high quality and effective appointments to the MSPB and Office of Special Counsel (OSC), among other positions, to carry out whistleblower protections for federal employees.  They even enacted a semblance of whistleblower rights by presidential order (later ratified by law) to provide some whistleblower protections for intelligence agency employees.  But the federal employee whistleblower reforms enacted into law in the Obama era are limited and rely upon the appointment of good women and men to the MSPB and OSC.  It is not the same as giving employees the right to bring their cases to court and demand a jury trial when these agencies fail due to errors, backlogs and delays or lack of resources.

So, as the power of the presidency is passed from Barack Obama to Donald Trump, I will ask again, wouldn’t it be nice if all federal employees (including intelligence agency employees) had the right to a jury trial in federal court on their whistleblower retaliation cases?

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Follow David Colapinto on Twitter: @dcolapinto