Why Whistleblowing Is a Legal and Moral Duty
Those of us raised in the history and traditions of the Department of Justice are neither by temperament nor training predisposed to be whistleblowers.
We are accustomed to speaking through our cases, not our personal statements. We are advocates, not witnesses. And we take pride in being a small part of a larger organization that has stood for some of our country’s greatest values, not taking a stand in our individual capacity. The act of whistleblowing—an individual’s revealing of misconduct or wrongdoing within an organization to external parties—in some ways runs against our professional instincts.
Those instincts are wrong.
Whistleblowing in a legal and deliberate manner when the time and circumstances require is both a legal and moral imperative of every current and former DOJ employee. We must all work to support those brave enough to take action to support the values of impartial justice and the rule of law that undergird the best of the Department of Justice.
On a personal note, I’ve experienced some of these issues firsthand. I never expected to testify before Congress about political interference by Justice Department leadership in the sentencing of a case I worked on, United States v Roger Stone. But that experience (uncomfortable though it admittedly was), helped me gain a deeper appreciation for how whistleblowing is part of our obligations to the rule of law and the impartial administration of justice. And most importantly, it made me deeply grateful for the support I received from hundreds of colleagues, past and present, associated with the Department of Justice. Their support meant the world to me then, and it means the world to me now.
In this piece, I’ll briefly examine what whistleblowing is, discuss some of the legal issues related to it, and examine some considerations of when and how to engage in whistleblowing activity.
What Is Whistleblowing?
Whistleblowing may have an undeserved reputation. The media often uses the term “whistleblower” to refer to people who make public disclosures of policies they think are immoral or wrongheaded—even if those disclosures are made in a manner that may be unlawful and severely detrimental to national security. Think of Daniel Ellsberg secretively copying thousands of classified documents that composed the Pentagon Papers and then passing them on to reporters. Or Edward Snowden downloading thousands of files to a thumb drive that he smuggled out of the NSA and gave to reporters.
Current (and former) members of the Department of Justice reflexively recoil at these actions. While others may debate the morality (or lack thereof) of Ellsberg and Snowden’s deeds, there is no question they broke the law. Both revealed classified information without authorization (though Ellsberg’s charges at trial were subsequently dismissed when a staggering array of government law breaking regarding Ellsberg came to light).
That’s not what I mean by whistleblowing, or how the law defines it.
In this piece, I address whistleblowing regarding the federal government, not disclosures related to private actors or state and local governments (a fertile area that many others have discussed). In particular, I focus on whistleblowing by current and past members of the Department of Justice.
There is no single legal definition of “whistleblowing,” but a good place to start is the Whistleblower Protection Act of 1989 and its amendments. The Act defines whistleblowers (including DOJ employees) as those who “reasonably believe[s]” that they are disclosing “any violation of any law, rule, or regulation; or gross mismanagement, a gross waste of funds, and abuse of authority, or a substantial and specific danger to public health or safety.” There are also a number of ways to make whistleblower disclosures, for example, to the DOJ Inspector General, to Congress, or to other third parties. Such disclosures, absent specific and distinct exceptions, may not involve classified information. Here, I’ll focus primarily on disclosures made outside of the DOJ. For more on the DOJ IG, have a look here.
Why Become a Whistleblower?
Whistleblowing is not without potential personal and professional cost.
It can bring unwanted public attention, potential government retaliation (even though that’s flatly illegal), false accusations of lying, and a host of other less-than-desirable outcomes. For DOJ lawyers, it can run counter to our usual training and impulses. Whistleblowing requires speaking out as an individual, not part of an organization. It requires speaking out of court, not in it. And at its core, whistleblowing involves revealing misfeasance in an organization that we all care deeply about, the Department of Justice.
None of this is easy.
But current and former DOJ employees should engage in whistleblowing for the same reasons that we took our job at DOJ in the first place: because it is the right thing to do. And we, as a community of former DOJ officials, must support those who stand up for the best values of the DOJ.
Whistleblowing on wrongful government actions supports the rule of law.
Make no mistake: whistleblowing is not only a moral imperative, it’s a legal one too. The regulation at 5 CFR 2635.101(b)(11) details the “basic obligation of public service,” to include the injunction that “Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.”
When the corruption is coming from within (or from the top of) DOJ or the White House, there is no question that this disclosure requirement includes informing Congress or other third parties of what has happened. In the words of the IG’s own whistleblower protection page: “DOJ employees may disclose information to anyone, including non-governmental audiences, unless the information is classified or specifically prohibited by law from release.” (FBI employees have more limited disclosure protections based on the individual to whom they disclose.)
How to Blow the Whistle?
How then, to go about blowing the whistle? First, whistleblowing has evolved over the years. Thankfully, there are now non-profit organizations that can assist whistleblowers with obtaining legal representation and making sure that they blow the whistle in an effective and legal manner that both fulfills their obligations to disclose wrongdoing and protects them as much as possible. Groups like the Government Accountability Project have significant track records and experience in helping their clients report wrongdoing safely, lawfully, and responsibly.
These organizations and their clients show that their whistleblowing isn’t inconsistent with the law: it’s an implementation of it.
Consider two recent instances of DOJ whistleblowing. First, actions by Danielle Sassoon, the former Acting U.S. Attorney for the Southern District of New York. When confronted with wrongful political pressure to drop the Eric Adams case, Sassoon did not just push back internally. She resigned rather than violate her oath and take wrongful politicized action to spare an ally of the President. At the same time, a publicly released resignation letter laid out in careful detail the sequence of events and wrongful actions taken by DOJ officials.
Let’s pause for a moment and address concerns some may have about publicly disclosing internal deliberations within the Justice Department. While there may be issues related to the Rules of Professional Conduct and potential privilege matters for DOJ attorneys that one should discuss further with their attorney, it’s important to note that courts have held that when there is reason to believe that information “may shed light” on government misconduct, the deliberative process privilege is “routinely denied,” on the grounds that “shielding internal government deliberations in this context does not serve ‘the public’s interest in honest, effective government.’” In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997). Similarly, the deliberative process privilege does not apply when the government has disclosed information selectively and misleadingly. See Comm. on Oversight & Gov’t Reform, United States House of Representatives v. Lynch, 156 F. Supp. 3d 101, 106 (D.D.C. 2016) (finding that the qualified privilege “must yield,” given that the “Department itself has already publicly revealed the sum and substance of the very material it is now seeking to withhold,” and “any harm that would flow from the disclosures sought here would be merely incremental.”).
Next up: the actions of DOJ lawyer Erez Reuveni, who disclosed a variety of wrongdoing at the Department, including government lawyers knowingly violating court injunctions, directing attorneys to mislead courts, and retaliating against him for refusing to lie to a court. Reuveni blew the whistle to Congress. He made a protected disclosure via his lawyers at the Government Accountability Project to the Senate Judiciary Committee, laying out in painstaking detail the ways the Department of Justice had violated the law and its duty of candor to the Courts.
Both Sassoon and Reuveni are heroes in the best model of the Department of Justice: Dedicated, non-partisan professionals who stood up for the rule of law and the duties and obligations of the prosecutor when it mattered the most. With some of the most powerful interests in the world arrayed against them, including the Attorney General and the President of the United States, they took a stand and represented the best values of the Department of Justice.
For their actions, we should applaud them. What they did took fortitude and integrity. And it is not easy. But it is the right thing to do.
What’s more, such actions are essential.
If Sassoon and Reuveni had merely resigned or “gone quietly” the scope of government wrongdoing would not have been revealed. And as every prosecutor knows, when bad actors feel they can get away with something easily, they will do it again.
Blowing the whistle in these cases helped to further a culture of standing up for what is right and disclosing what is wrong. Their actions played a critical role in showing that might does not make right, that a commitment to the rule of law matters, and that there are many who still believe in the best values of the Department of Justice. And for those who may be concerned about attaching their name publicly to whistleblowing, there are also ways to do so anonymously, but still fulfill your moral and legal obligations.
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When any federal employee joins the government, they take an oath “to faithfully discharge the duties of the office on which I am about to enter.” When members of the government fail to obey the Constitution or the laws and regulations of the United States, it is the duty of every DOJ employee to blow the whistle in a legal and careful manner.
Whistleblowing helps to advance the values which led us all to join the Department of Justice.
To those who have already risen to the occasion: thank you. We, and all those who believe in the rule of law, are in your debt.
To those who shall in the future: know that you are doing the right thing, that doing so is lawful and just, and that we will be here to support and applaud you in standing up for the rule of law.
Aaron S.J. Zelinsky is a partner at Zuckerman Spaeder, LLP. He served as an AUSA for over ten years, and as an Assistant Special Counsel to Robert S. Mueller, III. In June 2020 he blew the whistle by testifying before Congress regarding political interference in the sentencing phase of United States v. Roger Stone. All views expressed here are his own.
