Whistleblowers have a variety of understandable reasons for bravely coming forward – but winning a popularity contest is rarely one of them. After all, they are typically corporate or government insiders alleging fraud and wrongdoing, which tends to render them vulnerable from many sides, including from the powers at be. That’s why the hallmark of whistleblower law has always been to protect whistleblowers from retaliation.
As the Trump-Ukraine whistleblower scandal has many searching for historical comparisons, it’s important to remember that the U.S. government has long made it a priority to protect whistleblowers. The Continental Congress passed the first whistleblower protection law just seven months after the Declaration of Independence was signed, while Honest Abe Lincoln is responsible for the False Claims Act, which empowers whistleblowers to investigate and prosecute fraud and waste in the government, even when the government chooses not to intervene.
Despite last week’s sworn testimony from Acting Director of National Intelligence Joseph McGuire defending the informer’s conduct and confirming that the whistleblower had precisely followed the steps required by law, a chorus of powerful second-guessers has begun doubting the complaint and calling for a public outing and punishment – something that would alarm many lawyers with experience handling whistleblower claims. Normally, behavior like this is strong evidence for whistleblowers claiming retaliation and demonstrates a desire to cover up the exposed wrongdoing. But here, undoubtedly because those calling for such punishment are fighting a political battle, not a legal one, the threats are explicit.
President Trump even joined in, suggesting that anyone who shared information that wound up in the whistleblower complaint is “close to a spy.”
“You know what we used to do in the old days when we were smart with spies and treason, right?” the president mused. “We used to handle it a little differently than we do now.”
Meanwhile, many reporters and political operatives are doing their best gumshoe work trying to unmask the informer despite concern that such reporting was putting his or her life in danger.
Writes Politico contributor Tom Mueller, author of the forthcoming book “Crisis of Conscience: Whistleblowing in the Age of Fraud”: Since the beginning of whistleblowing in America, government whistleblowers who put their name and face on their revelations have not fared well, particularly those from the intelligence community. They are typically tarred in the media, often prosecuted and almost inevitably fired and blackballed from further government service.
It’s not uncommon at all for corporate whistleblowers to be treated with a similar degree of suspicion and threats of reprisal. This sadly predictable treatment explains why so many people are reluctant to assume the whistleblower role in corporate America, despite Sarbanes-Oxley protections that were created to protect whistleblowers following Enron.
Future whistleblowers are watching. Let’s hope these legal protections survive this latest test.