Leakers in the Trump Administration May Have Trouble Invoking Obama’s Whistleblower Protections

U.S. President Donald Trump continues to rail against press coverage of leaks from his administration and government agencies, most recently accusing the news media—offering no evidence—of reporting on lies and calling them leaks.

But there’s no sign the leaks are going to slow down. Government employees in agencies that face steep budget cuts or a massive shift in direction under the Trump administration have been contacting lawyers who specialize in representing whistleblowers, to see what their rights are under the law. The atmosphere is “ripe for retaliation,” as one lawyer said.

They would join a steady stream of government employees and political appointees leaking about in-fighting within the West Wing, the ongoing investigation into Russia’s alleged interference with the U.S. election by intelligence agencies and Congress, and the Manchester bombing.

While Trump has called leakers criminal, in many instances they could be protected by a law passed by his predecessor. In November of 2012, Barack Obama signed the “Whistleblower Enhancement Protection Act,” which gives government employees reporting “a violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety” additional protection from being fired, demoted, or reassigned for making these problems public. It specifically mentions scientists and censorship, protecting scientists who blow the whistle on “any effort to distort, misrepresent, or suppress research, analysis, or technical information.”

Despite signing the act, the Obama administration was notoriously tough on some whistleblowers, and the law leaves a lot of the federal government out. National security agencies don’t have an outside investigator for whistleblower claims—they still report problems they see in their departments to the head of their agency, who can fire them without oversight. Leaking classified information is illegal. And Senior Executive Service employees, the managers in federal government just below the level of political appointees, cannot go to an outside board to appeal if they are given a bad performance review or fired after pointing out wrongdoing.

Making the situation more uncertain for federal employees, the Merit Systems Protection Board, which is the final authority on federal whistleblower complaints, is essentially incapacitated right now because it lacks a quorum. The three-member board has just one member, because the Trump administration has yet to appoint a chair, and the Republican-led Senate refused to confirm Obama’s 2015 appointee to the board.

The board hears complaints by executive branch workers who believe they have been wrongfully terminated, demoted, or reassigned because they made public wrong doing in their agency, or for political reasons, and who disagree with a decision by administrative judges. It needs two members to make a decision, so can’t act on any petitions by workers until a new board member is nominated.

The position has been “vacant since January and there’s no reason to believe it will be filled any time soon,” said Michael Kohn, an attorney who specializes in representing whistleblowers, and is the co-founder of the National Whistleblower Center, a nonprofit. “The board has essentially never had a long-standing lack of a quorum and the failure to nominate individuals is extremely disconcerting to the whistleblower public interest community.”

While Trump has complained about leaks, whistleblowing has a long bipartisan tradition, and has gotten support from Republicans on Capitol Hill. For example, Senator Chuck Grassley, a Republican from Iowa, “is the most whistleblower-friendly person on the Hill,” said Kohn, noting that Grassley has supported every major protection that has come through Congress.

In a February letter to Trump, Grassley said whistleblowers were “key to draining the swamp.” It is almost certain the president does not see it that way.