Until the investigation into President Trump’s efforts to pressure Ukraine to investigate a political rival, the Trump Administration’s playbook for frustrating congressional investigations was simple and effective: instruct the officials called to testify not to cooperate because of alleged executive branch prerogatives. Former White House Counsel Don McGahn, White House Counselor Kellyanne Conway, former White House Deputy Chief of Staff Rick Dearborn, and former White House Staff Secretary Rob Porter all received these instructions and complied.
What’s different about the Ukraine investigation is that key witnesses are career civil servants and other officials who understand the role of Congress as a co-equal branch of government and who are protected by multiple federal statutes when they communicate with Congress. The White House has no lawful way to prevent them from appearing before Congress.
The public record of House and Senate committee interviews, depositions, and hearings shows that career employees across a variety of agencies and positions have routinely provided testimony to Congress. Co-Equal recently compiled an overview of this precedent. CIA officials, career prosecutors, Secret Service agents, enlisted military personnel, foreign service officers, and many others have testified before Congress. In the Benghazi investigation alone, over 60 career officials in the Departments of State and Defense and the Central Intelligence Agency provided testimony to Congress.
Congress has vigilantly protected the right of federal employees to communicate with Congress. The best-known law is the Whistleblower Protection Act, which protects employees who provide Congress with information about illegality, abuse of authority, gross mismanagement or waste of funds, or dangers to public health or safety. The Lloyd-La Follette Act has an even broader reach, protecting “[t]he rights of employees … to furnish information to either House of Congress, or to a committee or Member thereof.”
Moreover, it is a prohibited personnel practice for any federal official to implement or enforce a nondisclosure policy that fails to inform the affected employees of their “rights created by existing statute … relating to … communications to Congress.” Multiple appropriations riders, such as section 713 and section 743 of the Consolidated Appropriations Act of 2019, provide that no federal funds can be used to violate these protections.
The sanctions for infringing on the rights of federal employees to communicate with Congress can be substantial. They can include administrative penalties such as suspension, termination, or debarment, civil fines, and even imprisonment. Recently, one federal agency initiated collection efforts to recoup the salary of an official whom GAO found tried to prevent federal officials from providing information to Congress.
Over 100 years ago, Congressman James Lloyd argued on the House floor, “If no Government employee is permitted to speak, … then this is an aristocratic Government, dominated completely by the official family of the President.” Fortunately, thanks to the law he wrote with Senator La Follette and the additional protections since enacted, government employees can speak freely to Congress about executive branch misdeeds, including those of the President.
IMAGE: WASHINGTON, DC – OCTOBER 11: Former U.S. Ambassador to Ukraine Marie Yovanovitch (C) is surrounded by lawyers, aides and journalists as she arrives at the U.S. Capitol October 11, 2019 in Washington, DC. Yovanovitch was invited to testify behind closed doors to the House Intelligence, Foreign Affairs and Oversight committees as part of the ongoing impeachment investigation against President Donald Trump. (Photo by Chip Somodevilla/Getty Images)