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IF SUNLIGHT TRULY IS “the best of disinfectants,” as Justice Louis D. Brandeis wrote about the importance of transparency, then we need a Costco pallet of sunlight to scrub every surface of the Trump administration.
Trump is being sued for violating the emoluments clause. His first national security adviser pleaded guilty to lying to the FBI. Several cabinet secretaries are under scrutiny for their travel expenses. The list goes on. In this environment, there’s an urgent need for government employees to share what they know about any abuses of the public trust, whether through internal channels or the press.
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But a month ago, the attorney general said the DOJ is conducting more leak investigations (27) than the Cleveland Browns have scored touchdowns all season (23). Those investigations seem like a clear effort to pacify Trump, after he criticized the AG for being soft on leaks.
The problem is, an effort of that magnitude can be intimidating for whistleblowers, who, as a new resource puts it, are uniquely vulnerable.
Produced by the nonprofit Government Accountability Project, Working with Whistleblowers: A Guide for Journalists reviews the complex patchwork of whistleblower-protection laws and the legal definition of “whistleblower,” alongside considerations of the difference between leaking and whistleblowing, the challenges of handling classified information, and tips for journos on developing trust with whistleblower sources.
There’s an urgent need for government employees to share what they know about any abuses of the public trust, whether through internal channels or the press.
“We are focusing some of our efforts on education, and journalists were our first priority,” says Dana Gold, an attorney for the GAP who helped write the guide. “Government employees make great sources for accountability journalism. We need journalists and whistleblowers to work together effectively.”
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Founded in 1977, the GAP supports whistleblowers and leverages their disclosures to bring about reform. GAP attorneys wrote the guide, which was peer-reviewed by, among others, Megan Rose, of ProPublica; Steve Katz, of Mother Jones; Rick Blum, of News Media for Open Government and the Reporters Committee for Freedom of the Press; Fred Blevens, of Florida International University; and Kathleen Clark, of Washington University in St. Louis.
The guide is detailed enough that I can’t cover it exhaustively, but I hope its helpful main points, summarized below, will prompt readers to go through the whole thing.
Most whistleblowers do not work in the intelligence community, even though those who do tend to grab the biggest headlines.
Defining a whistleblower
Under the Whistleblower Protection Act, which applies to non-intelligence federal employees, a whistleblower is someone who discloses information internally or externally that s/he reasonably believes is evidence of a legal violation; gross mismanagement; gross waste of funds; abuse of power; or a substantial, specific danger to public health or safety.
(For classified or other statutorily non-disclosable information, the WPA covers only certain disclosures, like those to the US Office of Special Counsel or the agency inspector general. Most whistleblowers do not work in the intelligence community, even though those who do tend to grab the biggest headlines.)
The WPA also entitles federal employees to report censorship related to scientific research that would lead to one of the types of misconduct above; and to refuse to obey orders requiring the person to violate the law.
Reporting internally
Over 95 percent of whistleblowers first raise their concerns internally, according to a 2012 study by the Ethics Resource Center, and seek external help only if their employer fails to act. For that reason, whistleblowers are often connected to the information they disclose, and many want to remain unknown, so journalists must take care not to reveal inadvertently the source’s identity (e.g., by filing a FOIA request so specific that it sends up red flags within the agency and makes plain who the whistleblower is).
Patchwork of laws
Whistleblowing is a generally thankless endeavor, frequently met by employer retaliation in the form of reassignment, bad performance evaluations, threats, termination, and more. To further complicate things, there’s no one law that sets out whistleblower rights. Instead, there are more than 60 laws that apply in different circumstances.
Their protections depend on the nature of the information disclosed, who is disclosing it, whether the information is classified, the type of retaliation that occurred, how the disclosure was made, and to whom it was made.
“The law is really complicated,” Gold says. “It’s important for a whistleblower to understand his or her rights and the risks of disclosure. And journalists need to get a sense of them, too, to be in a position to work with, or even protect, the whistleblower—without compromising the story.”
Journalists need to understand to what extent, under the law, they can maintain a source’s anonymity in the face of efforts to unmask the person.
Leaking versus whistleblowing
They are different, as seen in the legal definition of “whistleblower” and the scope of protection for whistleblowing activity. “A ‘leaker’ is the anonymous source for unauthorized disclosure of any information,” according to the guide. “A ‘whistleblower’ makes a public interest disclosure, and may be either anonymous or public. The term ‘whistleblower’ means someone who is disclosing information about breaches of the public trust and is objectively significant for exposing those violations.” Leaks may be interesting but don’t necessarily raise such breaches.
“When someone calls a whistleblower a ‘leaker,’ it’s usually to delegitimize the whistleblower,” Gold says. “The term ‘whistleblowing’ is a bit of a pejorative to some people, but ‘leaking’ is even worse. It’s used sometimes as a form of character assassination, to undermine the credibility of the whistleblower and what he or she is disclosing. Journalists should be precise with the terms they use in their stories, and they should be clear about the type of person they’re working with.”
Anonymity
Should a whistleblower remain anonymous? It depends. S/he may not feel comfortable going public and setting off a big conflict, or may fear that any retaliation would be worse if s/he went public. But remaining anonymous can make it difficult for a whistleblower later to bring a retaliation case, if necessary, because whistleblower laws require an employee to prove that the employer was aware of his or her whistleblowing. Going public can make that easier.
Another big issue: Media shield laws. Promising anonymity to a whistleblower raises the same ethical and legal issues that such promises do in other contexts. Journalists need to understand to what extent, under the law, they can maintain a source’s anonymity in the face of efforts to unmask the person. State shields vary significantly, and the federal privilege is recognized in some circuits but not in others.
“Your currency here comes from keeping your promise, so as a threshold matter you have to know what you can promise, or be willing to go to prison on a contempt citation,” Gold says, before taking a wider view: “Basically, in all parts of the whistleblower-journalist relationship, we want both parties to be fully informed. We want to raise awareness of the role they play in democracy. Whistleblowers and journalists are, in many ways, two sides of the same coin.”
Read the full guide here.
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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.