Any Real Democracy Must Protect Whistleblowers

Janine Jackson: The New York Times stands by its decision to publish identifying details about the whistleblower at the center of Donald Trump’s power-abusing call with the president of Ukraine. Trump’s people already knew this stuff, was the paper’s explanation for not doing more to protect the person Trump and his ilk are calling a spy and a traitor.

Whistleblowers have a long and important history in this country, in which journalists play a critical role, though recent history makes vividly clear that not all whistleblowers are treated the same. But that’s not because we don’t have guidance on best practices if, indeed, our goal is to preserve the ability of people to bring to light information the public should know, but is hidden from us. As Daniel Ellsberg was quoted recently: “Officials in any country want to keep their secrets. What defines a democracy is that they don’t get to.”

Joining us now for more light on this is Dana Gold. She’s senior counsel and director of education at Government Accountability Project, the veteran whistleblower protection and advocacy organization. She joins us by phone from Washington, DC. Welcome to CounterSpin, Dana Gold.

Dana Gold: Thanks, Janine.

Trump and some others were out of the gate calling the figure at the center of this Ukraine scandal a “so-called whistleblower,” which suggests they do think there is such a thing, but this person isn’t one. But the way the term is tossed around, you almost get a sense that it’s just a subjective designation, or that it depends on how you feel about the information disclosed, or the person disclosing it. How do you define “whistleblower,” and distinguish it from other sorts of actions?

There are a couple ways to answer that. And I tend to land, as a lawyer, on the legal definition. One of my colleagues, for instance, Tom Devine, who you know is our legal director, would define whistleblowing as “someone who exercises free speech rights to expose abuses of public trust,” which is a pretty big definition.

Under the law, which is a complicated patchwork, actually, of protections, but generally, we think of whistleblowers — again, not always, but often — as employees who have evidence that they reasonably believe evidences a violation of law, rule or regulation, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety.

And I think that definition really matters, because it helps us identify what is and isn’t a whistleblower. For me, there are two big pieces rooted in the law. One, often we think of that person as an employee; that’s usually how the legal protections work. And that is because employees are in the best position to see evidence of wrongdoing, to find out first on the ground. They’re the best mechanisms for identifying problems, promoting compliance with the law, protecting the public interest, and so we want to empower them to be able to make disclosures.

But the other piece is that they’re not blowing the whistle on someone, you know, taking a pad of Post-It notes. The threshold, what matters, for a disclosure is high; it’s something that is rooted in the law, or is very significant to protecting the public interest. And so we look at the content of the disclosure to, I think, often decide whether or not something rises to a level of what would constitute whistleblowing.

Part of the “not really a whistleblower” line was the initial take from the Federalist, and then to Trump, that this whistleblower didn’t have “firsthand information,” and that therefore it didn’t rise to a certain standard within the intelligence community. Oh, and also that the rules had been hastily changed at the last minute so that firsthand evidence wasn’t required. That got debunked pretty thoroughly, but I think it just pointed to what you’re saying, is that different spheres might have different standards of things that you might need to meet.

I think that’s right. I mean, I guess that, for those of us who work in this field, it was pretty laughable, actually, right? I mean, it sounds good [to say] that he didn’t have firsthand information. But the law has never required that standard. It’s a reasonable belief standard.

And you have to have evidence of the wrongdoing. But this whistleblower said, “I have firsthand, as well as some other, information.” That’s what the law requires. He could have just had other information, as long as that information proved to be, again, both credible and urgent — and that triggers a process for investigating and then disclosing up the chain of how a disclosure is supposed to work.

So it’s interesting, though, because I think you’re right, that charge, which was specious, feeds into mischaracterizations about what constitutes whistleblowing and what doesn’t. But we obviously know that the information was certainly credible. We know that from the partial transcript that’s been released of the phone call.

Exactly.

Right? I mean, we see that obviously the evidence is there. It far surpasses reasonable belief, as well as certainly meets what would constitute an abuse of authority, violation of law, all of the magic standards of threshold of concern.

Let me ask you about the actual laws that do exist about whistleblowing itself, or about the way whistleblowers are to be treated. What do we have protecting those folks?

So it’s very complicated. There’s no one law that protects all whistleblowers or all employees who report concerns. There are big hunks of laws. So the Whistleblower Protection Act, which we’ve often heard referenced, but actually doesn’t apply to this whistleblower, but the Whistleblower Protection Act, which was amended by the Whistleblower Protection Enhancement Act in 2012, protects non-intelligence federal employees for reporting those kinds of concerns I mentioned; they have a right to make disclosures free from reprisal.

The intelligence community has a different set of protections. They have what’s called the Intelligence Community Whistleblower Protection Act, and there are various presidential directives and executive orders that are the implementing pieces of that law. But it’s similar; they have the similar right to make disclosures, but the process by which they can make those disclosures is very prescribed and narrow, because they’re often working with classified information. So most federal employees are not dealing with classified information, but for those in the intelligence community, who might be, they need to make disclosures through the inspector general.

And then, of course, there are other employees who are whistleblowers, those in the corporate sector, those who are blowing the whistle on environmental issues or bank fraud, etc. And there is a patchwork of whistleblower protections around each of those laws.

So partly, what you’re blowing the whistle on can matter, in terms of what kind of protection you have; it can also matter what kind of employee you are, sometimes it matters what kind of reprisal you’ve experienced. So it’s very complicated, actually. It’s why lawyers actually matter in this sphere.

Unsurprisingly, Donald Trump said, in response to questions about whistleblower protections, “I don’t care.” He’s been demanding to meet this person face to face. It feels unprecedented to have the president threatening the whistleblower. I mean, it’s kind of witness tampering. This is kind of new territory, maybe.

It is! I mean, I think that it really shows some weaknesses in terms of the law. But I think often it’s, we’re not envisioning the rot being at the top, and the accusation goes really all the way to the top here. So there are provisions in the law that protect the anonymity of the person making the disclosure, in part to preserve the integrity of an investigation, and certainly in part to minimize reprisal. You know, we’re kind of seeing the playbook mapped out for us, quite beautifully and frighteningly, right, but it’s like, you attack the messenger. You threaten them.

Yeah.

It really becomes all about trying to focus on the messenger and not the message, to discredit, to deflect attention. It also, certainly, creates a chilling effect on others who might think about speaking, supporting the whistleblowers’ disclosures, or coming forward on other issues.

In this case, the whistleblower didn’t go to media, they’re going through the much-vaunted “proper channels.” But the reason that some got so upset at newspapers publishing information about the whistleblower was concerns about retaliation and harm, first of all, but also because anonymity, like you’ve just said, anonymity — I think it’s Jesselyn Radack who just said, it helps “strip away the tendency to shoot the messenger, rather than listen to the message.” The anonymity is key to make the story what the story should be. You know, journalists love a story. But it’s crucial that they don’t focus on why whistleblowers come forward, or their backstory, because the story has to be what’s revealed.

I think that’s all really true. You can understand, though, why, of course, in this competitive age of journalism, the story is made more colorful by the human interest of finding out about who the whistleblower is. I think you’re right to point out the issue of, what are the ethics here? What is the duty of journalists, when they know the degree of vulnerability that all whistleblowers experience, right? This one, particularly, this is just a scale that is why we’re all trained, all the world’s attention is trained on this story, right? And we all get that the risk of outing this whistleblower is high, because of the rhetoric and the stakes, right? The rhetoric is intense and hostile, and the stakes are incredibly high.

So we all understand, in this very graphic way, that there is real risk to this patriot who did the right thing, did his duty of reporting wrongdoing and did it through proper channels. So we see that. But all employees are at risk of reprisal, actually.

And so when you think about what the duty is on the part of journalists; the journalists’ duty is to their reader. The hard thing here is that this whistleblower actually isn’t a source.

Right.

The whistleblower made a disclosure to the IG and not to the journalists. So how do we think about what the duty is, then, on the part of journalists to protect the whistleblower who’s actually not their source?

But I think, when we know that the risk to the whistleblower is — we’re not talking about normal levels of reprisal here, we’re talking about the physical risk of harm, I think, and I don’t think that’s me being a conspiracy theorist, right, or a fabulist, I think that that is the rhetoric that we’re hearing — that I think it puts a fine point on, if journalists, for instance, want information to come forward, what does it mean to do responsible journalism, whether or not that person is actually a source for that journalist?

Yeah. And, you know, I wish media did more to protect whistleblowers even when they are their source.

Absolutely.

Daniel Ellsberg was a New York Times source for the Pentagon Papers, but they didn’t help him with his criminal case. And, in fact, Abe Rosenthal said the paper just had no policy for helping a source who was being prosecuted.

And certainly the way that media have reviled and ignored Chelsea Manning and Assange and Edward Snowden, after using their work to win prizes, I just think is perverse. I think journalists have a responsibility to just go on the record supporting folks who are in this position, but particularly, as you say, the standards are different when they have actually been your source.

But bigger picture for the country: a process that allows for people to get information out and not be retaliated against is crucial for a society with democratic aspirations. And it seems like, big picture, the US seems to be sliding backward in that sphere.

Absolutely. I think that’s why this case is so important on every level, and even to the role of journalists, right, in terms of making sure that the public has information that they need to be able to self-govern. This is just a microcosm of democracy in action, and where it’s working and where it’s not.

You know, in some ways, it is working. Again, the best source of accountability and making democracy work did their job, reported wrongdoing, did it up the chain, and then things got gummed up when the acting director of National Intelligence failed to refer the complaint to Congress in the mandated seven-day period, because of political interference.

So to me, I think this is such a concerning scenario, not just because of the explosive content that the whistleblower disclosed about the abuse of authority, of pressuring a foreign interest to investigate a political rival and then to cover it up, right, the substance of the disclosure.

But the political interference in the whistleblower disclosure process is horrifying. Because if that’s not working right, Congress can’t do its job of overseeing the executive branch, information is going to dry up; we can’t, as a country, engage in governance. To me, that is actually the constitutional crisis that we’re in. That’s why we have to get this right, and why the role of the media is equally important, as the fourth estate in keeping the information flowing.

Absolutely.

And how they treat that whistleblower now matters for how we think about the flow of information coming from employee sources in the future.

We’ve been speaking with Dana Gold; she’s senior counsel and director of education at Government Accountability Project. You can find them online at whistleblower.org. Dana Gold, thank you so much for joining us this week on CounterSpin.

Thank you so much for having me and for all your good work.