Sunday Read: Trump’s Whistleblower Policies.
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On Nov. 6, 2024, it was announced that former President Donald J. Trump secured the 270+ electoral votes in the U.S. election, qualifying him to become President-Elect Trump. Trump’s presidency was one of the most divisive in American history; he was impeached twice, strained relationships with U.S. allies, and his administration’s lack of a pandemic preparedness plan ahead of the COVID-19 virus resulted in a public health crisis that led to 392,428 deaths in the U.S. through the end of his first term.
Whistleblower law frequently received focus during Trump’s four years in office. During his presidency, his stance on whistleblower law and protections was complicated and, when it came to those who came forward about his administration, contentious.
In this Sunday Read, National Whistleblower Center (NWC) reflects on how some of Trump’s whistleblower policies impacted the landscape and his own administration. This overview could provide insight into his actions during his final term, especially as he names nominees for cabinet positions.
Progress in Whistleblower Law
Shortly after taking office in January 2017, Trump took steps to strengthen whistleblower laws and protections in certain areas. The first, notable action pertained to veteran’s affairs.
In June 2017, he signed the Veterans Accountability and Whistleblower Protection Act (VPA). The WPA prohibits retaliation against applicants and employees who blow the whistle on misconduct such as a violation of law, rule, or regulation; a gross waste of funds; or a substantial and specific threat to public health and safety.
“[WPA] gives the Secretary [of Veterans Affairs] the authority to remove federal employees who fail and endanger our veterans — and to do so quickly and effectively. It’s been a long time since you’ve heard those words. Those entrusted with the sacred duty of serving our veterans will be held accountable for the care they provide,” Trump said during the signing. “At the same time, this bill protects whistleblowers who do the right thing. We want to reward, cherish, and promote the many dedicated employees at the VA. This legislation also gives the VA Secretary the authority to appoint new medical directors at VA hospitals — something which was almost impossible to do in the past. And these are going to be talented, talented people.”
The Government Accountability Office (GAO) conducted a study in 2023 to assess the effectiveness of the law. It noted that the VA settled 71 whistleblower retaliation cases since it began tracking them in 2022 (through 2023). GAO reported:
Amid an uptick in all cases reported to the VA, whistleblower retaliation cases have increased from 577 in FY 2020 to 736 in FY 2023.
In cases reported to the federal Office of Special Counsel from FY 2018–22:
· The percentage of cases that closed in the whistleblower’s favor increased, and
· Less than 1% of these cases were closed with a settlement agreement
The VA’s Office of Accountability and Whistleblower Protection (OAWP) information also showed that complaints come from program offices across the agency, but most of the settlements originated from complaints out of VA’s Veteran’s Health Administration, the largest of its three administrations.
In June 2018, Trump signed into law the Whistleblower Protection Coordination Act, to permanently reauthorize the role of the Whistleblower Protection Coordinator at each agency’s Office of Inspector General (OIG). The position renamed the Whistleblower Protection Ombudsman, who is tasked with educating agency employees about prohibitions against retaliation and with assisting the OIG in coordinating with the U.S. Office of Special Counsel (OSC), Congress, and other relevant entities to ensure allegations are handled appropriately.
Special Counsel Henry J. Kerner lauded the move, stating:
“By signing this important legislation into law, whistleblowers will now have a dedicated official permanently at each agency to educate the workforce and work with OSC to protect against retaliation. This is an important step to ensure whistleblowers who disclose waste, fraud, and abuse know their rights and are protected.”
Personal Conflicts and Retaliation
Trump’s approach to whistleblower laws took a sharp turn during his impeachment in 2019. A whistleblower complaint filed in August 2019 alleged that Trump had pressured the Ukrainian government to investigate then-former Vice President Joe Biden and his son, Hunter Biden in exchange for military aid. In response to this complaint, Trump repeatedly attacked the whistleblower who had filed it, questioned their motives and suggested they were politically motivated.
Trump and some of his allies, like Sen. Rand Paul (R-Kentucky) demanded that the whistleblower’s identity be revealed, despite legal protections meant to safeguard whistleblower anonymity. These demands ran counter to longstanding norms of protecting whistleblowers from retaliation and some of the executive actions Trump signed.
NWC Co-Founder and Chairman of the Board Stephen M. Kohn lent his insight to major media outlets during the impeachment as they tried to convey to the role of whistleblowers to the public and also dispel myths amid emerging misinformation. As Kohn told CNN in 2019:
When the law governing intelligence whistleblowers was written during the Obama presidency, “it put the burden on the President to enforce it. This is unique. The reason they put the burden on the President was to protect critical national security secrets.”
Kohn added: “If I’m fired for blowing the whistle on securities fraud, I can go before a judge and jury. I don’t go before the President. For national security, my judge and jury is ultimately the President of the United States of America.”
Kohn elaborated on the whistleblowers for Fortune:
The credibility of these two individuals would be a legitimate topic if they were testifying at trial, but they are not. They are giving investigative leads to both Republicans and Democrats in Congress to follow up with. That’s what the whistleblower laws are set up for. If there were to be a trial, it would happen in the Senate, and the House impeachment managers would decide which witnesses would testify. At that point, the president, who would essentially be the defendant, would have the opportunity to confront his accusers. We’re not at that stage yet.
On Feb. 5, 2020, Trump was acquitted on both counts by the Senate, as neither count received the necessary 67 votes (or two-thirds) to convict.
Michael Atkinson was Inspector General of the Intelligence Community at the time and only the second person to hold that office. Following the conclusion of the first impeachment proceedings against Trump, Atkinson refused to reveal the identity of the “Ukraine whistleblower,” and as noted by Kohn in Rules for Whistleblowers: A Handbook for Doing What’s Right, “because he was a presidential appointee, Trump had the authority to fire Atkinson, which he did on April 3, 2020.”
Despite the pressure from Trump, Atkinson acted ethically and protected the rights and anonymity of the whistleblower. His integrity was lauded by the Biden administration and many in the intelligence community.
A Look at the Numbers and the Laws
The data and the laws were seemingly at odds during Trump’s presidency. Despite a high volume of resolutions (and the value of awards), between January 2017 and January 2021, it was widely noted how Trump’s administration sought to weaken whistleblower protections in the corporate sector. The Securities and Exchange Commission (SEC), for example, continued to maintain and enforce programs like the whistleblower reward program under the Dodd-Frank Act. In fact, through December 2022, four of the top 10 SEC whistleblower awards were announced during Trump’s presidency — including the then-highest ever award of $114 million issued in October 2020.
Just prior to the record-breaking award, the SEC passed revisions to Dodd-Frank in 2020, which in some respects reduced protections of whistleblowers and incentives to report by:
· Limiting the reach of Dodd-Frank’s anti-retaliation provisions to “written communications.” Oral interviews to the SEC, for example, would not qualify for protections against retaliation.
· Amending its interpretation of Dodd-Frank’s definition of a “related action.”
· Loosening anti-retaliation protections for whistleblowers and heightened criteria for “independent analysis” to be deemed “original information.”
In reaction, Kohn told Whistleblower Network News that “although the program was not gutted, the dissents from two Commissioners demonstrate that work needs to be done to ensure that whistleblowers are fully protected, and the intent of Congress is achieved. We will continue to work with Congress and the Commission to make sure this highly effective program works for every qualified whistleblower.”
The Biden Administration appointed current SEC Chair Gary Gensler to reevaluate these changes. Along with Congress, the original protections were largely restored.
What to Expect in the Next Trump Presidency
Given Trump’s unpredictable history, there is no way to predict what will happen to the whistleblower landscape starting in 2025. Last week, Trump announced his administration aimed to create a Department of Government Efficiency (DOGE), focused on regulating federal spending to be overseen by Tesla CEO Elon Musk and biotech entrepreneur and former Republican presidential candidate Vivek Ramaswamy. Trump revealed sparse details about DOGE, but noted it “will provide advice and guidance from outside of Government, and will partner with the White House and Office of Management & Budget to drive large-scale structural reform and create an entrepreneurial approach to Government never seen before.”
On its face, DOGE seems similar to GAO, but an official government agency cannot be created without an act of Congress. An outside agency tasked with auditing the government could save millions in taxpayer dollars, or provide inroads for even more fraud, corruption and waste.
Additionally, Trump’s 2024 campaign focused on limiting perceived “deep state” influence, which could affect how whistleblower cases are viewed under his policies.
Furthermore, based on Trump’s own track record in the whistleblower arena and of dismantling the achievements of his predecessors — sometimes without an alternative or backup plan — legal advocates may need to ensure their cases are as strong as possible, should protections be weakened.
Resources For Whistleblowers and #GivingTuesday
The decision to come forward is not one to be taken lightly, nor should selecting a whistleblower lawyer. NWC provides resources that can connect you with the right legal professional.
Giving Tuesday is December 3rd! This year, NWC wants to do something special for whistleblowers, but we need your help.
Every year, NWC receives over 3,000 requests for legal help from whistleblowers. For #GivingTuesday, we want to show our appreciation for whistleblowers by sending these individuals free copies of Rules for Whistleblowers throughout December.
Donate to NWC’s book drive today to share the gift of knowledge this season ➡️https://ow.ly/UR7z50U5nN0
Support NWC
NWC fights to bolster whistleblower programs, inform the public and employees in all sectors about available laws and protections, and help connect whistleblowers with the right legal representation. As a 501(c)(3) non-profit our awareness building work is made possible with the support of our generous donors. Please consider donating $100 today to help us continue to educate the public on how to find help when it is time for them to blow the whistle, and donors who donate $100 or more will receive a copy of Rules for Whistleblowers.
This article was written by Justin Smulison, a professional writer, podcaster, and event host based in New York.
