Government watchdogs warn DOJ stance will have 'chilling effect' on whistleblowers

Government watchdogs warn DOJ stance will have 'chilling effect' on whistleblowers
© Anna Moneymaker

Dozens of government watchdogs are warning that a Justice Department memo arguing that the head of the intelligence community wasn't required to give the Ukraine complaint to Congress could have a "chilling effect" on future whistleblowers.  

Nearly 70 inspectors general signed onto a letter saying they disagreed with the Justice Department's Office of Legal Counsel (OLC) stance that the whistleblower complaint at the center of the impeachment inquiry wasn't an "urgent concern," a finding that contradicted the intelligence community's inspector general (ICIG).

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"This letter ... expresses our support for the position advanced by the ICIG and our concern that the OLC opinion, if not withdrawn or modified, could seriously undermine the critical role whistleblowers play in coming forward to report waste, fraud, abuse, and misconduct across the federal government," they wrote in the letter, which was released Friday.

They added that they also "believe that the OLC opinion creates uncertainty for federal employees and contractors across government about the scope of whistleblower protections, thereby chilling whistleblower disclosures."

The Council of the Inspectors General on Integrity and Efficiency, which sent the letter, is chaired by Michael Horowitz, the Justice Department inspector general.

The letter comes after DOJ's Office of Legal Counsel wrote in a memo to the Office of the Director of National Intelligence (DNI) that they disagreed with intelligence community Inspector General Michael Atkinson's determination that the whistleblower complaint was an "urgent concern," a label that requires it be given to Congress.

"The alleged misconduct is not an 'urgent concern' within the meaning of the statute because it does not concern 'the funding, administration, or operation of an intelligence activity' under the authority of the DNI," the Justice Department wrote.

Instead, DOJ said a letter from the intelligence community inspector general and the whistleblower complaint "have been referred to the Criminal Division of the Department of Justice for appropriate review."

Atkinson wrote in a September letter to the Justice Department that he was standing by his determination that the whistleblower complaint was an "urgent concern." He added that the DOJ OLC's reasoning "not only appears contrary to settled understandings of the DNI's responsibilities and authorities, but is gravely troubling."

It's the latest high-profile break from within the administration over the whistleblower complaint, which is focused on President TrumpDonald John TrumpWhere do we go from here? Conservation can show the way Gov. Ron DeSantis more popular in Florida than Trump Sotomayor accuses Supreme Court of bias in favor of Trump administration MORE asking Ukraine to investigate the Bidens and whether or not he tied aid to the country opening up a probe.

After Trump and his allies floated a theory that the complaint form for whistleblowers had been changed to no longer require firsthand knowledge, the intelligence community inspector general released a rare statement disputing that. The inspector general noted that firsthand knowledge had not been required and that the whistleblower followed procedures that had been in place since May 2018.

Atkinson noted in his letter to DOJ that the OLC memo creates "uncertainty" about whether or not employees with the intelligence community will be protected from reprisal if they provide information about an urgent concern, only for it to be later determined that the information was outside of their jurisdiction.

The government watchdogs, in their letter this week, agreed with Atkinson, saying protections from whistleblowers shouldn't be reduced because of the Justice Department's stance.

"If intelligence community employees and contractors believe that independent IG determinations may be second guessed, effectively blocking the transmission of their concerns to Congress and raising questions about the protections afforded to them, they will lose confidence in this important reporting channel and their willingness to come forward with information will be chilled," the inspectors general wrote.

"More generally, this concern is not limited to the intelligence community but will have a chilling effect that extends to employees, contractors, and grantees in other parts of the government, who might not consider it worth the effort and potential impact on themselves to report suspected wrongdoing if they think that their efforts to disclose information will be for naught or, worse, that they risk adverse consequences for coming forward when they see something they think is wrong," they added.