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Dissenting from Within the Trump Administration

After the presidential election, many of those who were already working in government or who were considering joining began to ask questions about the ethics of working for a Trump Administration. One of us argued in a Just Security post that those working in the federal government should stay, even if they oppose the policies articulated by Trump during the campaign, and that students should not automatically write off applying to enter the bureaucracy.  The post argued that it is precisely because the situation is so dangerous—and the stakes so high—that we need those committed to the rule of law to work in a Trump Administration.

As we near the inauguration, we write to follow up on that post by offering a catalog of the ways those working in government can respond when asked to participate in actions they believe to be illegal or unethical or when they become aware of such actions taken by others. We break the options down into four categories: (1) working from within; (2) reaching out to allies in other parts of the government; (3) whistleblowing; and (4) last resort measures.

This is a general outline of options that apply to a wide range of federal employees. We recognize, however, that the decisions about how to dissent are deeply contextual. The precise options available will vary by, among other factors, the agency and the individual’s position within it.  We therefore invite Just Security readers to offer their own suggestions—the more detailed, the better.  Have you used these or other techniques to challenge illegal or unethical policies?  If so, how did you dissent?  What guidance would you offer to someone in the same situation?  Send your stories (no classified or otherwise protected information, of course!) to us at dissentingfromwithin@gmail.com.   We’ll collect and share selected reader input (with any identifying information removed), to provide guidance to others.

I. Working from within

When an action or policy is proposed that a government employee considers to be illegal or unethical, the employee can almost always work with colleagues to try to modify the plan. An employee can, for example:

  • Explain why the policy is illegal or wrong. Marshal clear, strong, non-ideological arguments about the legal objections or the dangers posed by the proposed policy. Ideally, these objections should be raised as the policy is forming, not after the fact.  But even if a decision has been made, an employee can explain why it should be reconsidered. In some cases, the employee may also be able to shape the implementation of the policy so that it is carried out in a way that avoids illegal or unethical action.
  • Elevate the issue. If colleagues involved in formulating the policy cannot be persuaded, an employee can elevate the issue to his or her superior for advice or assistance.
  • Draw on internal resources. If a federal employee has a legal concern, he or she can seek advice from the appropriate person in the agency’s General Counsel (GC) Office (or equivalent office).  If the relevant lawyer has signed off on the problematic policy, the issue can be elevated within the office, and ultimately to the chief legal officer him- or herself.
  • Create a record. At each step, employees should keep a clear, written, contemporaneous record of meetings and conversations.  Keeping records not only allows an employee to later substantiate the steps he or she took to address problems as they arose, but such records can also offer future officials a clearer understanding of the views and information taken into account in making policy decisions. (This is also a time to be extra scrupulous. If your notes themselves may contain classified information, treat them accordingly.)

II. Reaching out to allies in other parts of the government

  • Seek allies in other agencies. Federal employees can reach out to counterparts at other agencies, consistent with their obligations of confidentiality. If internal efforts have been unsuccessful, external support can be a powerful tool.
  • The Lawyers’ Group. For lawyers in the national security field, the interagency lawyers’ group described by Charlie Savage’s book Power Wars can serve, if it continues to exist, as a forum for expressing concern about legal matters. Through it, a member of the group (usually a General Council of a national security agency or his or her representative) can bring a legal matter to the broader group of lawyers in the national security community to develop a joint position on the legality or illegality of the proposed action or policy.
  • Request an OLC Opinion. In cases of agency conflict over a legal policy matter, an agency can request an opinion from the Office of Legal Counsel at the Department of Justice. (This is an option available only to those at the highest levels; a line attorney, for example, cannot unilaterally seek an opinion.) The standards applied to evaluating a request are specified here. In brief: “The legal question presented should be focused and concrete; OLC generally avoids providing a general survey of an area of law or issuing broad, abstract legal opinions. There should also be a practical need for the written opinion; OLC should avoid giving unnecessary advice, such as where it appears that policymakers are likely to move in a different direction. A written opinion is most likely to be necessary when the legal question is the subject of a concrete and ongoing dispute between two or more executive agencies.”
  • Congressional oversight. As outlined below, whistleblowing statutes establish formal processes for employees of agencies to bring urgent concerns to Congress. But there may be other opportunities for agency employees to share information about unlawful or unethical agency policies or actions with congressional oversight committees—which are charged with ensuring that agencies comply with the relevant laws and that agency policies serve the public interest.  When agency employees participate in hearings, investigations, and reports, they are required to offer truthful information to oversight committees. (In working with congressional oversight committees, employees must, as always, be careful to observe all their relevant legal and other professional obligations.)

III. Whistleblowing

  • Whistleblowing to the Office of the Inspector General. Seventy-two agencies across the executive branch have “statutory” Inspectors General who enjoy safeguards of independence, including appointment without regard to political affiliation, limited protection against removal, and supervisory autonomy under the Inspector General Act of 1978 and its subsequent amendments. (Although not covered by the IG Act, both the Central Intelligence Agency Office of Inspector General and the Office of the Inspector General of the Intelligence Community have similar statutory authority.)
    Inspectors General have the authority to receive employee complaints or information concerning agency misconduct. Such information may concern “a violation of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to the public health and safety.” Whistleblowers enjoy two kinds of protection. First, the Inspectors General must protect the employee’s anonymity, unless disclosure becomes “unavoidable” during its investigation. Second, agency employers must not “take or threaten to take any action against any employee as a reprisal” for his or her disclosure to the Inspector General.
    In addition, there is a specialized framework for intelligence community whistleblowing. The Intelligence Community Whistleblower Protection Act of 1998 allows employees of certain agencies to bring “urgent concerns” to Congress’s attention, either through the appropriate Inspector General or, in some cases, directly to the congressional intelligence committees. Furthermore, Title VI of the Intelligence Authorization Act for FY2014 protects intelligence community employees (but not contractors) against adverse security clearance or information access determinations based on a variety of protected disclosures.
    Here’s a handy list of statutory Offices of the Inspectors General and a database of contact information from the Council of the Inspectors General on Integrity and Efficiency.
  • Whistleblowing to the Office of Special Counsel. The Civil Service Reform Act of 1978 creates a separate whistleblowing avenue. It established the Office of Special Counsel (OSC), which receives disclosures related to “violation[s] of law, rule, regulation,” “gross mismanagement,” “gross waste of funds,” “abuse[s] of authority,” or “substantial and specific danger[s] to public health or safety.” The OSC does not have independent investigative authority, but it can order an agency to conduct its own investigation and can submit a report on the reasonableness of the agency’s investigation to relevant congressional committees and to the President. The OSC must keep the whistleblower’s identity confidential, and the Merit Systems Protection Board process protects the whistleblower against retaliation. Congress further strengthened these anti-reprisal protections with the Whistleblower Protection Act of 1989. (Unfortunately, the CSRA’s protection is unavailable to many employees working on national security or foreign affairs. The statute categorically excludes employees of several intelligence agencies as well as any agency whose “principal function . . . is the conduct of foreign intelligence or counterintelligence activities” (as determined by the President). The OSC also lacks authority over disclosures “prohibited by law” or information “specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.”) For more on the OSC, see this valuable Just Security post by Nick Schwellenbach, OSC’s Director of Communications, and Adam Miles, Deputy Special Counsel for Congressional Affairs and Policy.
  • The State Department Dissent Channel. The Department of State Dissent Channel allows employees “to express dissenting or alternative views on substantive issues of policy, in a manner which ensures serious, high-level review and response.” Unlike the whistleblower statutes, the Dissent Channel excludes “complaints relating to violation of law, rules, or regulations; mismanagement; or fraud, waste, or abuse.” State Department regulations describe the Dissent Channel as “a serious policy channel” and encourage employees to use regular channels to air alternative views whenever possible. When these front channels fail, however, the Dissent Channel offers employees a route directly to agency leadership, including the Secretary. State Department regulations limit the number of individuals granted access to Dissent Channel memoranda, prohibit retaliation based on an employee’s use of the Dissent Channel, and task the OIG with investigating alleged reprisals.

 IV. Last resort measures

  • Speaking to NGOs or the Press. David Pozen’s work has documented the ways in which government officials can and have used leaks to express dissent, as well as to shape discourse about government policies.  A variety of groups have arisen to assist federal employees who are considering both internal and public whistleblowing, including Public Employees for Environmental ResponsibilityGovernment Accountability Project, and the Project on Government Oversight, which together created this white paper on “the Art of Anonymous Activism.”  But most disclosures outside the formal framework outlined above are at least a violation of contractual duty, if not criminal law, and they put those who leak at legal risk—sometimes significant legal risk. In particular, if the information is classified, then the employee could be fired or (in some cases) criminally prosecuted, among other sanctions.  A disclosure of classified information may, moreover, put national security at risk. For government lawyers, federal ethics rules and rules of professional responsibility may prohibit disclosure of a client’s information and attorney/client communications—leaving those who disclose vulnerable to disbarment, among other penalties. Many have noted that the Justice Department has recently increased prosecutions of leaks, and some have expressed concern that this trend will continue, now that investigators have more powerful tools to trace communications with the press. Anyone considering taking such a step should ensure all other avenues have been exhausted and consult a lawyer.
  • Last, but not least, government employees are always able to resign, if they are unable to change a policy they consider illegal or unethical. Resignation can be such a powerful tool that sometimes simply threatening to resign is enough to have the desired effect (especially for high level officials), though the threat will only be effective if the threat is real. Resignation not only ends the employee’s participation in the objectionable policies, but “noisy resignations” can sometimes bring fresh attention to such policies, occasionally prompting a change even when other efforts have failed. (Former government employees—especially those who had access to privileged or classified information—should remember that resignation does not absolve them of their legal obligations to prevent the disclosure of privileged or classified information.) The advice often given to new government employees—that they should write a resignation letter on their first day on the job and keep it in the desk drawer—is undoubtedly right.  The difficulty, of course, is to know when to hand in that letter.  It is not uncommon for government employees to deeply disagree with policy decisions or even, in some cases, to believe it is contrary to law.  (That’s true, for instance, when government lawyers disagree on a hard legal question.)  In most such cases, resignation would be a gross overreaction.  Figuring out which disagreements warrant resignation and which do not can be difficult.  Resignation is typically reserved for cases where the employee concludes that the agency is either acting unethically or in conscious disregard or disdain for the law.

* * *

In a powerful Just Security post written shortly after election day, David Luban counseled against serving in the new Trump Administration, in part on the grounds that even decent people are likely to be corrupted.  He argued, “Don’t tell yourself you can tame the beast, because the beast will tame you.” Once you are inside, he argued, “your frame of reference changes.”  There’s undoubtedly some truth to this point.  But if all thoughtful, principled people take the position that it is impossible to serve in government without becoming incapable of moral judgment, who will be left to run the government?  Instead of avoiding the challenge by opting out, those working for the federal government—or about to join the federal government—should take time to consider in advance where they draw the line.  And as their work proceeds, they should remind themselves to step back on occasion and assess whether the decisions they are making match the standards they set for themselves at the outset.  Even then, the decision of whether and when to take extraordinary steps, including resignation, will not be easy—but unthinking, reflexive complicity will be less likely.

Thoughtful government employees can serve as a powerful check on government abuse and, indeed, help their colleagues, their superiors, and their clients avoid legal and ethical trouble.  The outline we have provided here shows that there is a robust array of options available to every single executive branch employee to challenge illegal and unethical actions.  That is a source of immense strength—one that we all are going to count on as the next four years unfold.

 

Image: Aerial view of Constitution Avenue, Washington DC – Getty/Hisham Ibrahim

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About the Authors

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School Follow her on Twitter (@oonahathaway).

Third-Year Student at Yale Law School and Herbert J. Hansell Student Fellow at the Center for Global Legal Challenges