For more than a century, it has been acknowledged that whistleblowers who expose misdeeds for the greater good must be granted protection from retaliation, whether they work in the financial sector, foreign service, or anywhere in government.
President Trump, who refers to whistleblowers as “leakers” and “spies” and “human scum,” thinks otherwise. So to the surprise of no one, he began his post-impeachment vengeance campaign by removing two men — Lt. Col. Alexander Vindman and European Union Ambassador Gordon Sondland — who testified against him during the House hearings. He also fired Vindman’s twin brother and fellow army officer, even though he played no part in the impeachment inquiry.
This got the attention of most members of Congress, notably Sen. Bob Menendez, the ranking member of the Senate Foreign Relations Committee. He shared his thoughts in a conversation with Dave D’Alessandro of the Star-Ledger Editorial Board, which was edited for brevity:
Q. The president and his supporters suggest that Vindman and Sondland deserved to be sacked because their testimonies represented betrayals or insubordination. Does this speak to President Trump’s concept of public service and duty?
Menendez: Absolutely. The real betrayal is the president dismissing those who had a moral and ethical duty to report what they considered an illegal conversation, then followed the chain of command and dutifully responded to a congressional subpoena. The real betrayal is dismissing a war hero and Purple Heart recipient who followed the rules and served his country.
This is not what we should expect in the United States, where following the rule of law matters. And it has a chilling effect on others who would be whistleblowers in any form – whether it’s against the president or a department secretary or a cabinet member who sees wrongdoing and wants to report it. It’s also an act that says to career foreign service officers, ‘Do not do anything but express the absolute views of those who ultimately are above you, those in leadership, even when it’s wrong.’ Of course you would normally pursue their policies, but not when it’s wrong or illegal. That would be the equivalent of the Nuremberg defense: I was just following orders. This is so fundamentally wrong, and is so consequential to the checks and balances that it’s amazing to me that he gets away with it.
Q. Could anything have been done to protect Vindman and Sondland from reprisal?
Menendez: Sondland is in a weaker place, because he was a political appointee. The reality is, it seems to me that there are actions that should be enforced under the Whistleblower Protection Act. There are consequences for retaliation against whistleblowers, and those should be pursued. And the identity of the original whistleblower who started this process should be protected as well under the statute.
But here’s the problem: When you have a Department of Justice that says the president cannot be charged for any criminal action — and that the only remedy is impeachment — the president is essentially an autocrat. He can fire the very individuals who at the end of the day did their duty, alerted the country, and alerted Congress — and he can’t be prosecuted.
So one of the things I’m looking at is whether there is a way to statutorily create a way to prosecute a president who would violate the law — particularly as it relates to violating whistleblower protections by enacting retribution against those who come forth or obey a congressional subpoena and give testimony.
Q. It would be easier if you had some help from the other side, perhaps from Sen. Charles Grassley, who considers himself a champion of whistleblowers and applauds those in foreign service who testify before Congress. Are you surprised he hasn’t responded to the retribution against Vindman and Sondland? And shrugged off Sen. Rand Paul reading the name of the original whistleblower on the Senate floor?
Menendez: I’m totally surprised. Look, you undermine the strength of your argument when you cannot be consistent — particularly when you are talking about the importance of whistleblowers and the necessity to protect them. You cannot choose when there is a ‘good’ or ‘bad’ whistleblower; when one deserves protection and one does not; when you speak out for one, but don’t speak out for the other.
Either you believe the whole concept of whistleblower protection is a critical element of the check and balances, and in making sure the American people are protected in every single way, or you don’t. And if you do — as I’ve heard Senator Grassley speak to this time and time again as he chairs the Senate Finance Committee — then I am shocked that he is absolutely silent on this question.
Q. You have a Brookings Institution event Thursday that speaks to the need for oversight of US foreign policy. Should congressional oversight be informed by federal workers speaking to Congress without the consent of their bosses?
Menendez: Yes, when there is something illegal going on or where there is a waste of taxpayer money — those are just two examples where they should be free to speak out. That’s what the whistleblower statute is supposed to be all about.
But among the things that I’m thinking of — and I haven’t finalized the proposal — are mandatory disclosure of withheld funds, requiring the State Department and other agencies to inform Congress about any appropriated assistance that is not conveyed within a certain number of days; strengthening protections for diplomatic officials, including justification for removal; mandatory disclosure to Congress of efforts to solicit foreign governments for assistance other than for official US policy; and enhancing whistleblower protection and support.
Those are just a few ideas, along with limiting the number of politically-appointed ambassadors, expediting judicial review for subpoenas, and imposing penalties for officials who don’t comply when they have no valid reason to do so.
