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What rights does the White House Whistleblower have?

In early August, an intelligence officer filed an anonymous complaint.  In summary, the complaint alleged that President Trump “is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election.”  The officer disclosed that President Trump pressured Ukraine to investigate Joe Biden, one of his “main domestic political rivals.”

True to form, President Trump took to Twitter to respond to the allegations.  He referred to the allegations and the subsequent impeachment inquiry as a “scam” and a “witch hunt.”  He has repeatedly demanded, “Where’s the Whistleblower?” and referred to the anonymous complainant as a “FakeWhistleblower.”  President Trump has also criticized the fact that the allegations are based on second-hand information, rather than on the complainant’s direct knowledge.  Is the president right?

When is someone a whistleblower?

In the most basic terms, a whistleblower is someone who reports unlawful conduct.  In the employment context, a whistleblower is someone who reports his/her employer’s illegal actions.  The White House whistleblower complained pursuant to a law that applies specifically to “urgent concerns” raised by intelligence community employees.  That law defines what an “urgent concern” is.  The Whistleblower Protection Act (WPA) is a more general law that protects whistleblowers.  Under the WPA, a whistleblower is a federal employee, former employee, or applicant who makes a “protected disclosure.”  A disclosure is “protected” only if it is based on a reasonable belief that one of the following has occurred:

  • Violation of a law, rule, or regulation;
  • Gross mismanagement;
  • Gross waste of funds;
  • Abuse of authority; or
  • Substantial and specific danger to public health or safety.

Furthermore, the disclosure must be made to a supervisor, the Office of Inspector General (OIG), the Office of Special Counsel (OSC), or Congress.

And there may be additional requirements.  For example, you must comply with Executive Order 13526 if the complaint involves classified information, like the complaint against President Trump.

What rights do whistleblowers have?

There are federal and state laws that protect whistleblowers from retaliation.  Again, you’re only entitled to protection if you meet the legal definition of a whistleblower.  For example, under the WPA, you’re not a whistleblower if you only make a disclosure to a colleague.  And your disclosure must be based on a reasonable belief.

President Trump and others have dismissed the White House whistleblower’s allegations because they were based on second-hand information.  The whistleblower admitted that he/she didn’t participate during President Trump’s phone call with Ukraine.  The WPA doesn’t require the whistleblower ot have first-hand knowledge.  However, the whistleblower must have a reasonable belief that the allegations are true.

So far, it looks like the White House whistleblower’s complaint meets that standard.  The whistleblower states that he/she “received information from multiple U.S. Government officials” over the course of several months and pursuant to “official duties.”  The complaint includes specific details about how the alleged comments and actions were unlawful.  And President Trump’s public comments as well as media coverage about relations with Ukraine during the relevant time period corroborate the information the whistleblower received from government officials.

Are you a whistleblower?

If you complained about your employer’s waste, fraud, or abuse, we can help.  We represent employees in Office of Special Counsel (OSC) complaints, Independent Right of Action cases with the Merit Systems Protection Board (MSPB), Department of Justice investigations, qui tam actions under the False Claims Act, retaliation claims, arbitration and mediation, and settlement negotiations.  We will work with you to evaluate your case, discuss your options, and develop a strategy to assert your rights.  Send us an email or call us at (202) 463-6036 to speak with an experienced employment attorney.  Alan Lescht and Associates represents state and local government workers and private sector employees in Washington, DC, Maryland, and northern Virginia, and federal government employees around the world.

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