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Stacked deck: Whistleblowers face long odds of prevailing against FBI’s top brass

The FBI’s internal whistleblower protocols provide little to no recourse for bureau employees who flag wrongdoing and then suffer retaliation, according to a prominent lawyer for whistleblowers who said they typically end up battling an arduous administrative process that rarely results in their favor. 

That harsh assessment of the process is backed up by Justice Department data tracking the outcomes of whistleblower cases.

“The FBI [whistleblower] program is like every program which the agency self-selects for employees who keep their mouth shut,” whistleblower lawyer Dan Meyer said in an interview with The Washington Times.

Whistleblowers recently have been in the spotlight in Washington as a flood of FBI workers has alerted Congress to politically motivated investigations, biased leadership and misconduct by senior officials at America’s premier law enforcement agency.

But the FBI’s whistleblower program has been under scrutiny for decades. Critics of every political stripe say the agency begrudgingly or outright refuses to investigate allegations from its rank-and-file agents about the leadership’s lousy behavior.

It is a mindset, they say, dating back to the days when J. Edgar Hoover ran the bureau.

According to Justice Department data going back 10 years, complaints of retaliation against FBI whistleblowers were almost never substantiated when investigated by the DOJ.

For example, the DOJ received 122 FBI whistleblower reprisal cases in 2022, including 28 cases backlogged from the previous year. Of the 122 cases, only one case — that’s 0.008% — resulted in a finding that there had been a reprisal. Another two cases were settled.

The infrequency of DOJ investigations authenticating FBI whistleblower reprisal complaints is similar for the past decade, regardless of which party controls the White House or Congress.

Mr. Meyer, who previously led whistleblower investigations for the Defense Department Inspector General’s Office, said that finding reprisals in less than 1% of the cases was evidence of an obvious coverup.

“They are all designed to get Congress off the agencies’ backs. They’re not reporting results-based metrics on their programs,” he said.

Mr. Meyer said the substantiation rate of reprisal cases, though, should be above 3% and closer to 11%.

“A healthy [whistleblower] program is going to be higher than 3%. It’s going to be up by 11%. When I ran civilian reprisal investigations for DOD IG, I had a 40% substantiation rate. And that really scared a lot of people,” he said. “But it shows that if you have employees that are knowledgeable, and investigators are actually out there, to go and find reprisals, if it exists, you’re going to get much higher than .008%.”

He said Attorney General Merrick Garland “should be embarrassed by that percentage and shame on Congress. How can you get a report like this and look at it and not hold a hearing?”

The Justice Department is mandated to collect data on the outcomes of whistleblower cases. In 1997, President Clinton signed an executive order for the attorney general to provide an annual report on the disposition of whistleblower cases. It must include the number of allegations of whistleblower reprisals received during the preceding year, the disposition of each allegation and the number of unresolved allegations.

In 2018 under President Trump, 98 whistleblower reprisal cases were initially received by the Justice Department, with 28 carrying over from the prior year. Only one complaint resulted in substantiating a reprisal. Another two cases were settled.

In 2016 under President Obama, 44 whistleblower reprisal cases were received by the Justice Department, including 17 backlogged from 2015. Just one complaint resulted in a finding of reprisal, while settlements disposed of seven cases.

Lawyers specializing in whistleblower cases tend to agree that FBI whistleblowers face an unfair system that Congress should overhaul. 

“We clearly need better statutory protections,” tweeted Tristan Leavitt, a lawyer for FBI whistleblower Marcus Allen who recently told Congress he was retaliated against for questioning the official narrative surrounding the riot at the U.S. Capitol on Jan 6, 2021.

Others want FBI whistleblowers to have access to the federal court system.

“You have to give these FBI agents the right to go to federal court, get a judge with real power, real protection,” Stephen Kohn, who also serves as chairman of the Board of the National Whistleblower Center, said on Fox News.

“Under the current law, they have to go within the Justice Department, the very Justice Department that may have retaliated, and they can appeal it to the deputy attorney general appointed by the president. That decision is final. They can’t appeal it. They can’t get a judge to weigh in. Thus, they are extremely vulnerable to severe retaliation,” he said.

When Congress established the modern system of whistleblower protections, it forbade retaliation against FBI whistleblowers. Still, it gave them none of the recourses available to whistleblowers at other federal law enforcement agencies such as the Drug Enforcement Agency, U.S. Marshals Service, Secret Service and the Bureau of Alcohol, Tobacco, Explosives and Firearms.

Whistleblowers at those agencies can file retaliation complaints with the U.S. Office of Special Counsel, an independent agency. FBI whistleblowers are restricted from going to the OSC.

Until last year, FBI whistleblowers could not appeal retaliation cases to the federal Merit Systems Protection Board which hears appeals of various agency actions and may order an agency to take corrective actions.

FBI whistleblowers were allowed to appeal to the board, a recourse long available to other federal law enforcement workers, thanks to a provision Congress passed in December in the National Defense Authorization Act. The FBI, however, now claims that only FBI whistleblower reprisal cases filed after December can go to the board.

In recent testimony before the House Judiciary Committee, Mr. Leavitt said the stance on appeals to the Merit System Protection Board demonstrates that the FBI continues to trample on the rights of whistleblowers.

“Time has demonstrated, in my opinion, that it was a mistake to exclude the FBI from the standard whistleblower protection process,” he said. “It discourages integrity and encourages deceit and even corruption.”

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