Trying to rebut James Comey’s damning testimony about his interactions with President Donald Trump, some Republicans—including the tweeter-in-chief himself—are less interested in what Comey revealed than in how he did so. They’ve slammed the former FBI director as a “leaker” for disclosing to a friend, and subsequently to the press, unclassified memoranda summarizing his interactions with President Trump. But that dog won’t hunt. If Comey had been a rank-and-file government employee, his disclosure would have constituted legally protected whistleblowing. Smearing Comey as a leaker is not only wrong, it’s also dangerous, because it can only discourage other government employees—who have far more to lose—from bringing misconduct to light.
What’s the difference between leaking and blowing the whistle? In popular parlance, it depends on who’s doing it. When someone reveals information in a manner that benefits our party or cause, we call it whistleblowing. When our own ox is gored, we call it leaking.
The law, however, knows no such bias. The Whistleblower Protection Act (WPA), which protects federal government employees against retaliation for blowing the whistle, offers a useful definition of the term. Under the WPA, a federal government employee cannot be punished for disclosing publicly, unless specifically prohibited by a different law, information that he or she reasonably believes evidences “any violation of any law, rule or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” Importantly, disclosing an abuse of authority can be protected even if such abuse doesn’t rise to the level of an illegal act – such as, to pick a statute at random, obstruction of justice.
In considering how to evaluate Comey’s actions, it’s useful to imagine a scenario involving typical government employees. Let’s say Jane, who works in a federal agency, learns that her boss, Don, fired her colleague, Jim, for investigating Don’s buddy, Mike. Jane knows that Jim’s investigation was legitimate—and that sitting in Jim’s file cabinet is a memo discussing Don’s improper efforts to derail it. Jane walks into Jim’s former office, makes a copy of his memo, and gives it to a friend with instructions to deliver it to a reporter.
What do we make of Jane? She is shielded by the law. Don’s actions clearly constitute an “abuse of authority”—he fired Jim in an effort to impede a worthy investigation. If Don tries to fire, demote or otherwise retaliate against her, she has an excellent WPA claim and Don could be in big trouble. That Jane may have violated normally applicable rules about disclosing agency documents has no legal bearing on the matter. And if Jane would be protected for blowing the whistle on Don, then surely it would be wrong to condemn Jim had he, after getting fired, blown the whistle himself.
There’s a wrinkle here—the WPA doesn’t actually protect FBI whistleblowers, which is why I set this hypothetical in a generic government office. To protect the integrity of ongoing investigations, FBI employees must disclose wrongdoing through internal governmental channels. (As FBI director, Comey supported expanding whistleblower protections for FBI employees and last August gave a stirring speech in defense of whistleblowers at a Capitol Hill event marking National Whistleblower Day.) But this carve-out—which oddly doesn’t apply to other law enforcement agencies—shouldn’t affect how we judge Comey’s actions. He didn’t disclose any investigatory information, but rather disclosed precisely to protect the integrity of an investigation.
Some Trump allies have alleged that the contents of Comey’s disclosure were uniquely unsuitable for media consumption. Trump’s personal lawyer, Marc Kasowitz, incorrectly stated that Comey confessed to disclosing “classified information and privileged communications.” Indeed, the WPA doesn’t protect public disclosures of classified material, and excludes entirely certain agencies whose work is almost always classified. But as Comey explained in an exchange with Senator Roy Blunt, he provided only unclassified memoranda—indeed, given what we know about their contents, there would be no reason to assume any content was classified. As for Kasowitz’s apparent reference to executive privilege, that doctrine cannot block a private citizen from willingly disclosing information, as I explained in Politico last week.
Congressional Republicans have also been quick to condemn Comey as a leaker. It’s particularly disappointing to see GOP Senator Susan Collins helming this attack. With all the conviction of Claude Rains discovering gambling at Humphrey Bogart’s Casablanca café, Collins told Chuck Todd she was “stunned” that Comey had provided memos to the media, an act she deemed inappropriate. But as the top Republican on the Senate Homeland Security and Government Affairs Committee, Collins was instrumental in passing the Whistleblower Protection Enhancement Act of 2012, which I worked on extensively as part of the Obama administration’s negotiating team. As Collins noted upon its passage, the goal of the legislation was to make “crystal clear that federal employees should not be subject to prior restraint from, or punishment for, disclosing wrongdoing.” Collins cannot seriously dispute that what Comey did was precisely what she lauded federal employees for doing.
Nor does it make any sense for Collins and other Republicans to find “irony” in the fact that Comey disclosed memos despite having criticized leaks in the past. Surely there is a difference between leaking classified information pertinent to ongoing investigations and sharing with a reporter one’s own memo, drafted to protect the integrity of an investigation, after getting fired in an effort to sink that investigation.
Terrified of alienating Trump supporters, Collins and her colleagues continue to demonstrate that, as Upton Sinclair once put it, “It is difficult to get a man to understand something when his salary depends upon his not understanding it.” With regard to whistleblowers, this has consequences far beyond James Comey.
Slamming a high-profile whistleblower as a petulant leaker sends a worrisome message to rank-and-file governmental employees who may encounter misconduct. Typically, we protect and praise employees who leak wrongdoing because we recognize that such leaks can be the best way to expose waste, fraud and abuse. During the Obama years, Republicans lauded the efforts of employees who exposed what they viewed as government malfeasance, and were appropriately vigilant for signs of retaliation against them. Some Republicans are nostalgic for that era. Like an aging rocker whose hits are long past, Rep. Jason Chaffetz, chairman of the House Committee on Oversight and Government Reform, convened a hearing last week to rehash the details of Operation Fast and Furious, a botched ATF effort at tracking the flow of firearms to Mexico that was brought to light by ATF whistleblowers, and investigated extensively by Congress, during President Obama’s first term.
Despite ample evidence that the Trump administration might not be entirely on the level, the GOP Congress has been extremely loath to exercise its oversight powers thus far. Chaffetz, who anticipated greeting President Hillary Clinton with a knife and fork, is so uninterested in overseeing Trump that he’s quitting Congress entirely at the end of the month. In such an atmosphere, the contributions of whistleblowers are even more important than usual. But if whistleblowers are derided as self-serving leakers for daring to expose abuses, fewer will come forward. The GOP’s attacks on Comey provide little cause for optimism.