The Whistleblower’s Dilemma

It’s been a busy few months for whistleblowers. In early September, a senior official in the Department of Homeland Security alleged that top agency officials had stifled the work of analysts who were raising concerns about threats from Russian election interference and white supremacists. A week later, Lt. Col. Alexander Vindman sat down with NBC News’ Lester Holt to talk about how he was pushed out of the government after he testified against President Trump in congressional impeachment proceedings last year. And early this month, the official who led the government’s vaccine efforts resigned after allegedly incurring the wrath of administration officials because he opposed political efforts to tout the benefits of hydroxychloroquine to treat Covid-19.

Regardless of which candidate wins on Tuesday, the election almost certainly will churn up a new round of whistleblowers from inside the Trump administration and beyond, as insiders either bail on a failed presidency or seek to set the record straight before a second term. But we should not mistake any short-term flurry of activity for long-term change in the willingness of government whistleblowers to come forward—at least not yet.

Until earlier this year, I was a prosecutor at the Justice Department in Washington, DC, specializing in financial fraud. I also made disclosures of misconduct during my time in the department—some of which drew coverage from The Wall Street Journal, National Review, and legal trade publications—and I eventually left the government as a result. So I have some experience with how a disclosure of misconduct can impact someone personally—including the pros and cons of becoming the subject of media coverage, and how that coverage might shape people’s incentives, either to make internal disclosures of misconduct that may draw press attention or to provide their accounts directly to media outlets.

This isn’t an attempt to provide a comprehensive answer to the question of why a government employee with knowledge of potential misconduct might be reluctant to come forward. Still, there are several issues involving the operations of the media itself that I believe have gotten less attention than they deserve, and that I believe have had a material effect on the willingness of federal employees to speak out.

 

WHEN THE MEDIA UNEARTHS a government employee’s disclosure of misconduct, there is an understandable desire to be first to report on it—or, at the very least, to cover the initial complaint—since the public’s attention eventually moves on. But reporters often do not follow developments closely enough when the government tries to discredit these employees—even though that sends a powerful message to other government officials about what might happen to them if they were to come forward with their own accounts. 

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The experience of a Justice Department employee named John Elias is instructive. Elias testified before the House Judiciary Committee this summer about his concerns about the politicization of antitrust enforcement inquiries. He prepared an internal complaint that provided persuasive circumstantial evidence that a series of antitrust reviews in the cannabis industry had been prompted by Attorney General William Barr’s personal distaste for the product, rather than legitimate concerns under the law. His allegations were fairly widely covered, given the news attention span of our era.

Shortly after Elias’s testimony, Politico reported on a two-page report from the Justice Department’s Office of Professional Responsibility—the office that handles internal ethics complaints—that summarized the results of its investigation into Elias’s allegations. It looked bad for Elias. The report purported to rebut his factual claims and concluded that “even if” the “allegations were true,” the “pretextual investigations” alleged by Elias “would not have violated any relevant laws, regulations, rules, policies, or guidelines.”

Politico did not assess the credibility of the memo for its readers; in fact, the memo was absurd on its face. No credible reading of the ethical rules that govern lawyers’ conduct would permit “pretextual” investigations. The department’s ethics office also has a notoriously bad record of properly handling allegations of misconduct, which is often attributed to the fact that the office reports directly to the Attorney General—who, in this case, was a literal subject of Elias’s complaint. None of this was mentioned in Politico’s piece, even though it bore directly on the credibility of the department’s effort to discredit Elias.

Things got worse from there. About a week later, Politico reported on another response to Elias’s complaint from the department—in this case, a lengthy letter to Congress that claimed that Elias’ testimony was “misleading and lack[ed] critical facts.” The story made no effort to sort through the supposed dispute, or even to provide an independent assessment from someone with experience in the area. In fact, a close reading of the letter—by a former Justice Department official turned law professor who was writing for the website Just Security—showed that it had not, in fact, disposed of Elias’s concerns. (Asked to comment for this story, a Politico representative said that it “does not comment on the sourcing, methods, and editorial process used” for its articles but that “[w]e stand by our reporting in both of these instances and, more broadly, our coverage of the Department of Justice which has consistently held the department to account.”)

I recently had a similar but less egregious experience. It occurred as a result of a Wall Street Journal report about a legal dispute that arose in federal court in Chicago after news reports concerning a memo that I submitted to the Justice Department’s inspector general shortly before I left. The memo discussed potential misrepresentations to courts made by prosecutors in order to generate more time to build their cases by misusing a little-known statutory provision.

The Journal has done very impressive coverage of the somewhat arcane and important issue at the center of my disclosure, but I was surprised when I read in the paper’s most recent piece that, in the course of the dispute in Chicago, the department had “denied the allegations” that I had made.

In fact, no such thing had happened. The department had carefully avoided engaging with the factual questions and had instead opted for the aggressive strategy of arguing that it didn’t matter if the conduct at issue had occurred because there’s nothing that prevents the department from submitting even “nakedly pretextual” filings with courts (the government’s own words). The Journal had itself reported that non-denial five months prior.

I think that position is absurd on its face, but that’s beside the point. A casual reader of the Journal’s latest piece—someone who may have read none of the earlier coverage—could easily have been led to believe that there has been a debate on the factual questions raised by my disclosure even though there has been none whatsoever.

The upshot of all this is that it’s incumbent on editors to ensure that their reporters are given the time and freedom to cover subsequent developments just as thoroughly as initial disclosures of potential misconduct. The media’s failure to do so may deter other people from coming forward, out of justifiable fear of being smeared by unscrupulous former colleagues. This problem has been all the more difficult to understand given the media’s general embrace of the fact that people throughout the Trump administration routinely lie about things both big and small. Why would these officials be fair or reliable in their responses to people who make them look bad?

 

Even with the protections in place, there are plenty of ways to make life miserable for a federal employee whose supervisors aren’t particularly interested in good government.

 

IT’S NO SECRET that news outlets have mishandled information in ways that may have actively harmed federal employees who sought to disclose misconduct.

The most prominent recent example was The Intercept’s handling of a classified document that it received from an anonymous source about Russian interference in the 2016 election. When the outlet contacted the government for a response, it apparently provided a copy that, as the Times put it, “allowed the document’s provenance to be quickly deduced.” The source is now serving a five-year prison sentence, and although I don’t endorse her conduct, I remain amazed by how irresponsibly The Intercept acted as a newsgathering operation.

Last year, the Times itself published a lengthy story about the official whose complaint set off the Ukraine scandal—a report that included details sufficient to identify him by virtually anyone who worked with him and by any acquaintance with some meaningful familiarity with his work. The report set off a vigorous debate about whether the paper had outed him.

To be sure, the issues surrounding the Times’s decision to publish that story were not straightforward. But coming from a paper that published an op-ed by the Trump administration official known as “Anonymous”—who, we recently learned, is a now-former Homeland Security official named Miles Taylor—there was no easily identifiable principle to account for the Times’s differential handling of these people’s identities. In its recent story about Taylor, the Times noted that its op-ed pages “are managed separately from the news department, which was never told of Anonymous’s identity.” Still, to a reader, the lesson may seem to be that the protection the paper would afford you might be contingent on how media-savvy you are.

Here too, I have had a similarly unpleasant experience. Last year, I learned that the Justice Department had opened an investigation following an inquiry from a reporter at the Associated Press concerning the serial ineptitude and ethical misconduct of a senior career official that I had worked with. This particular official’s failings were well known within the department and at the FBI. This person’s conduct had, among other things, resulted in a court admonishing them for having committed “a significant error in judgment” based on inappropriate “shortcuts,” and it could have resulted—on several different occasions—in the dismissal of an important prosecution that I led concerning a fraud that cost victims across the world nearly $150 million.

The inquiry at issue was from an AP reporter named Michael Kunzelman, who had been following the case. In it, he wrote to the senior official that he had “obtained a copy” of an internal memo that I had written about them, and he asked the subject for comment.

Needless to say, the overture did not go over well. It led the department to claim, as they later put it in a memo to me, that Kunzelman “was in possession” of my memo, and they suspended me pending an “investigation” into whether I had released “sensitive Department information to the media.”

That claim was false. It was, in fact, part of a months-long effort by my office’s senior management—all of whom, perhaps not coincidentally, had acquired their positions during the Trump administration—to punish me for raising those concerns. But the AP’s sloppy and ill-considered email was all they needed. I stuck around for several months to see if the “investigation” was going anywhere, until it became clear that it was not. In fact, more than a year later, no one at the department has even attempted to contact me for my side of the story as part of this “investigation.”

To make matters worse, the AP never ran the story Kunzelman had been reporting—something they probably should’ve figured out before approaching the department with a request for comment. (I reached out to both Kunzelman and a representative at the AP multiple times to give them an opportunity to comment for this piece, but they did not respond.)

In the scheme of things, none of what happened mattered much at the time, except to me. The underlying misconduct was extremely bad as a professional matter—and it reflected a serious dereliction of duty as a prosecutor, a position where the public deserves the highest-quality work—but it wasn’t the sort of thing that I would’ve expected to draw much interest outside of the legal profession.

But these are marquee names in the news industry—the Times, the AP, The Intercept—and federal employees follow the news like everybody else. It is entirely rational for them to be reticent about coming forward when they learn about episodes like these. Even if that weren’t the case, it would remain imperative for news outlets to treat federal employees—whose jobs may be at risk—with the sort of care and respect that they would expect themselves if their jobs were on the line.

 

FINALLY, MANY REPORTERS and the public have a particular interest in stories that are based on leaks of classified or national security information, but many people both in and out of the government generally don’t understand that many disclosures of government wrongdoing to the media are perfectly legal. There are specific legal provisions that govern the disclosure of information by employees who work in the government’s national security apparatus (like the FBI and CIA), but if you don’t work in those agencies, there are broad anti-retaliation protections under federal law. 

At the Justice Department, for instance, the agency’s inspector general notes on its website that “[i]n general, employees may disclose information to anyone, including non-governmental audiences, unless the information is classified or specifically prohibited by law from release.” These disclosures are “protected”—meaning that it’s illegal for the government to retaliate on the basis of such a disclosure—as long as they’re based on a “reasonable belief” that misconduct has occurred.

As we’ve seen, even with the protections in place, there are plenty of ways to make life miserable for a federal employee whose supervisors aren’t particularly interested in good government. In my case, it was senior officials at my old office who managed to get the Justice Department’s inspector general to open the “investigation” into the AP’s inquiry that was used as the basis for my suspension. There was a bizarre irony to this—the office, presumably unwittingly, had been enlisted as an instrument in the very retaliation that it’s supposed to protect employees against. But it also demonstrated how easily the federal bureaucracy can be manipulated by people in positions of authority.

Some of the best reporting on government misconduct—like the work of Politico’s Dan Diamond, who reported on the use of private jets by a former Health and Human Services Secretary, and on the expenditure of millions of taxpayer dollars to promote another top Trump official—has nothing to do with classified information or national security, which tend to draw the most reportorial interest. I suspect that many federal employees working outside of the national security space are under the misimpression that working for the government means that their work is entirely confidential when, in fact, Congress has written laws that are intended to allow the public to know how the government is operating—or mis-operating—in their name.

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Ankush Khardori is an attorney and former federal prosecutor who specialized in financial fraud. His work has been published by The Washington Post, The Wall Street Journal, Politico, The New York Review of Books, The New Republic, and Slate, among other outlets.