Should Gov’t Whistleblowers be Protected From Retaliation & Have Their Identities Revealed to the Accused? (S. 2798)
Do you support or oppose this bill?
What is S. 2798?
(Updated October 26, 2021)
This bill — the Whistleblower Protect Act of 2019 — would ensure that whistleblowers who are government employees or contractors receive adequate protection. It would reaffirm that such individuals couldn’t be terminated or prosecuted for making protected disclosures or any other disclosures as a whistleblower. It would also reaffirm that the Sixth Amendment guarantees that, in the case of criminal prosecutions and impeachments arising from whistleblowers’ disclosures, the accused has the right to confront their accuser, and that that right isn’t superseded by whistleblower protections.
Argument in favor
When a whistleblower’s accusations lead to formal proceedings, such as an impeachment, the accused have a right to confront their accusers in person. As long as the Constitution is the law of the land, the Sixth Amendment supersedes statues affording anonymity to whistleblowers.
Argument opposed
Revealing the identity of a whistleblower to the person they’re accusing of wrongdoing increases the likelihood that the whistleblower will face retaliation because of their disclosure. That will have a chilling effect on the willingness of whistleblowers to come forward and report misconduct.
Impact
Government whistleblowers; those accused by government whistleblowers; investigations prompted by government whistleblowers; and protections for government whistleblowers.
Cost of S. 2798
A CBO cost estimate is unavailable.
Additional Info
In-Depth: Sponsoring Sen. Rand Paul (R-KY) introduced this bill to both protect federal whistleblowers and ensure that those accused by whistleblowers have the opportunity to confront their accusers. In a November 5, 2019 Fox Business Network interview, he expounded on the need to ensure that the accused can face their accusers, as provided for by the Sixth Amendment:
“The Sixth Amendment is pretty clear. It’s part of the Constitution, part of the Bill of Rights, and it says that you get to confront your accusers. And so, I think it’s very clear that the only constitutional mandate here is, is that if someone’s going to accuse you of something that might remove the president from office, for goodness’ sake, shouldn’t they come forward and present their accusations in person?”
In a November 6, 2019, Senate floor speech when he blocked Democratic efforts to bring up a resolution restating Senate support for federal whistleblower protections before introducing this bill, Sen. Paul further expounded on the need to make sure Sixth Amendment protections for the accused are protected:
“The Sixth Amendment guarantees an individual the right to face their accuser. Yet the House of Representatives has been conducting a secret impeachment inquiry based on secret claims made by a secret whistleblower. My bill would make clear that the Sixth Amendment is not superseded by statutes and that the president should be afforded the same rights that we all should: to understand the nature of the allegations brought against them and to face their accuser. This is in the Sixth Amendment. So for all the caterwauling about whistleblower statutes, there is a high law of the land. It is the Constitution, it is the Bill of Rights, and the Sixth Amendment says if you’re accused of a crime, you get to face your accuser.”
Finally, in a November 6, 2019 op-ed in The Hill, Sen. Paul criticized Democrats for apparent hypocrisy on the issue of whistleblowers’ anonymity:
“With regard to whistleblower statutes, not only do I support them, but I have advocated that they be expanded to cover government contractors such as Edward Snowden. Edward Snowden, as will be recalled, proudly attached his name when he released proof that James Clapper had lied about warrantless mass surveillance of Americans. These statutes are intended to prevent someone from being fired or prosecuted. The statute dictates that the inspector general not release the name but is silent as to anyone else revealing the name. It’s funny that before THIS whistleblower, many who are now criticizing my stance chose not to defend perhaps the greatest whistleblower of all time –Snowden. Minority Leader Chuck Schumer (D-N.Y.) said of Snowden, ‘If Mr. Snowden had the courage of his convictions, he would come back to the country, stand trial, and tell the American people and a jury why he thought what he did was justified.’ It seems Schumer’s defense of whistleblowers depends upon the subject whistled. I believe it is very simple: the Sixth Amendment guarantee of confronting your accuser supersedes all statutes. Any whistleblower who alleges a crime ultimately will have to face their accused in court.”
House Speaker Nancy Pelosi (D-CA) has pushed back on suggestions that the identify of the whistleblower who reported President Donald Trump for pressuring Ukraine to investigate the Bidens should be made public. She says, “Nobody should have the right to endanger whistleblowers. And that is the system that I will defend. And the American people understand that."
Similarly, Senate Minority Leader Chuck Schumer (D-NY) says Republican calls to name the whistleblower are “wrong” and “dangerous,” and that outing the whistleblower or setting a precedent that whistleblowers’ identities should be made public would send a “chilling message to future patriots.”
Sen. Mitt Romney (R-UT) has also expressed support for preserving whistleblower anonymity. On November 5, 2019, he said, “[W]histleblowers should be entitled to confidentiality and privacy, because they play a vital function in our democracy.”
Stephen I. Vladeck, a professor at the University of Texas School of Law and an expert on national security law, notes that the Sixth Amendment only applies to criminal prosecutions:
“The text of the Sixth Amendment expressly limits it to ‘criminal prosecutions,’ and even there, the confrontation right applies only to those witnesses whose evidence is used against the defendant at trial. There’s no right even in a criminal case to confront every single person who played any role in the investigation leading to the charges (like anonymous tipsters).”
However, Vladeck also notes that the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA) and related statutes don’t guarantee anonymity for whistleblowers. These laws only guarantee that whistleblowers following the law in reporting concerns can’t be demoted, fired, reassigned, docked pay, sent in for psychiatric exams, or denied security clearance in retaliation:
“Nothing in the ICWPA expressly protects the anonymity of a complainant, or provides sanctions for someone who discloses it. I think the harder question is whether disclosing a whistleblower’s identity could run afoul of other statutes, such as the federal criminal laws barring efforts to intimidate witnesses.”
Conservative writer and former U.S. Attorney Andrew McCarthy concurs with Vladeck:
“The confrontation clause protects only the accused at a criminal trial. The point is that before one’s liberty is taken away, one must have the opportunity to question one’s accusers. Impeachment, however, is not even a legal proceeding, much less a criminal trial. It is a political proceeding. No one’s liberty is at stake; it is strictly about whether an official should be stripped of political authority — in the president’s case, of the executive power… Finally, even when the Sixth Amendment does apply (at a criminal trial), the confrontation it guarantees is the ability to cross-examine the witnesses the prosecution calls to establish its case. It does not extend to other people (e.g., tipsters, others who’ve provided hearsay information to investigators). It is very common in the investigative stage for police to receive damning information about a suspect from second- and third-hand sources. That information is investigated, which is how the police and prosecutors locate the first-hand witnesses who are called at the eventual trial. There is no right to confront witnesses the prosecutor does not call, even if they have provided accusatory information… The Sixth Amendment has nothing to do with impeachment, and it does not advance a claim that [a] ‘whistleblower’ should be outed and questioned.”
House Oversight Committee Democrats believe that efforts to expose whistleblowers’ identity may run afoul of both the law and the Code of Official Conduct:
“Efforts to expose the identity of the whistleblower are contrary to law and could expose Members of Congress to significant liability. The Intelligence Authorization Act of 2010 and the Intelligence Community Whistleblower Protection Act include specific procedures for employees, detailees and contractors within the Intelligence Community to make protected disclosures to IC elements’ inspectors general and to the congressional intelligence committees. A robust statutory framework also prevents obstruction of lawful communications by federal employees with Congress, and of congressional proceedings. The Code of Official Conduct requires that every Member of Congress ‘shall behave at all times in a manner that shall reflect creditably on the House,’ The Committee on Ethics has historically viewed this provision as ‘encompassing violations of law and abuses of one’s official position.’”
Of Note: Sen. Paul has been a longtime champion of protections for whistleblowers. However, in recent months, he has argued that the whistleblower who filed a complaint against President Donald Trump alleging that he improperly withheld aid from Ukraine in an attempt to compel an investigation of the Bidens should be unmasked and confronted.
In a fact sheet, House Oversight Committee Democrats note that Republicans previously stood “side by-side with Democrats for decades to protect the legal right of whistleblowers to anonymously report waste, fraud, and abuse.” As recently as 2017, then-Chairman and Current Ranking Member of the House Intelligence Committee Devin Nunes (D-CA) claimed publicly that protecting the legal right to whistleblowers to report abuses anonymously is vital to Congress’ constitutional oversight authority and said, “We want people to come forward and we will protect the identity of those people at all cost.” In the 115th Congress, every Republican member of Congress joined a unanimous vote in the House to increase penalties for retaliation against whistleblowers. At the time, Rep. Martha Roby (R-AL) said:
“The reason whistleblowers face systematic retaliation is because it works. When a brave whistleblower faces intimidation or persecution for their actions, every other employee sees it and they know what will happen to them if they tell the truth. It has a powerful chilling effect. ... That’s just wrong and it’s time to punish those who do it with harsher penalties.”
The Whistleblower Protection Act (WPA) protects Federal employees and applicants for employment who lawfully disclose information they reasonably believe evidences:
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A violation of law, rule, or regulation;
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Gross mismanagement;
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Gross waste of funds;
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Abuse of authority; or
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Substantial and specific danger to public health or safety.
Media:
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Sponsoring Sen. Rand Paul (R-KY) Op-Ed
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Sponsoring Sen. Rand Paul (R-KY) November 6, 2019 Senate Floor Speech
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Sponsoring Sen. Rand Paul (R-KY) November 5, 2019 Fox Business Network interview
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The National Review (Opposed in Principle)
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The Washington Post
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Vox (Context)
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Courier Journal (Context)
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CNN (Context)
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House Oversight Committee Democrats (Context)
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Whistleblower Protection Act (WPA) (Context)
Summary by Lorelei Yang
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