Don’t Shoot the Whistleblower Messenger

The President’s disturbing and aggressive counterattack against the White House Whistleblower reporting the President’s potential wrongdoing crosses acceptable norms and guts the underlying core of whistleblower laws by discouraging citizens from coming forward for fear of governmental retaliation. Intimidation and retaliation against a conscientious citizen is not acceptable behavior and may amount to a federal criminal offense.

Early whistleblower laws date back to the American Civil War. These were enacted to empower citizens to assist the government in identifying and rooting out corruption. Whistleblowers often partner with the government in exposing not only financial fraud but vast issues ranging from national intelligence breaches, to tainted food to airline safety, and everything in between. The whistleblower’s role is to raise allegations of impropriety, misconduct or wrongdoing. All allegations are to be independently investigated and verified by regulators and the authorities. It is not the whistleblower’s role to act as judge and jury.

In this current case, during the Whistleblower’s course of official duties, information was received from multiple “U.S. Government officials that the President of United States is using the power of his office to solicit interference from a foreign country in the 2020 election.” The Whistleblower continues “more than a half a dozen U.S. officials …” informed him/her “of various facts related to this effort.” The Whistleblower states “approximately a dozen White House officials [sic] listened to the call-a mixture of policy officials in duty officers in the White House Situation Room, as is customary.”

Congressional testimony will test the veracity of the Whistleblower and other witnesses which may either corroborate or detract from the allegations. Attacking the Whistleblower’s status is intentional and reckless; it is designed to intimidate individuals from coming forward with information of potential wrongdoing, not only in the Ukrainian inquiry, but throughout America in all types of cases.

Having represented the Enron whistleblower, Sherron Watkins, I saw the fear and anxiety she initially possessed standing alone. Sherron was at odds with Texas’ most powerful law firm, the world’s second largest accounting firm, and Enron, a company inhabited by the best and brightest. Initially, I did not view Sherron as a whistleblower because at the time she did not fall under a designated, whistleblower statute. She was simply an individual who did right by reporting what she believed to be fraudulent activity to Enron’s upper management and subsequently to the authorities. It took tremendous courage, moxie, and a firm moral compass to face down the multiple, powerful forces aligned against her. Ultimately, Sherron was vindicated after several criminal prosecutions and congressional action implementing laws protecting both whistleblowers and investors. Time magazine honored Sherron, putting her and two other whistleblowers on the magazine’s cover as “Persons of the Year.” It takes guts to be a whistleblower, whether acting out of conviction, patriotism, courage or bounty. Coming forward is intensely difficult. We must support whistleblowers and allow them to be heard. When right, their actions can protect investors, save lives, and taxpayer dollars by exposing corruption.

Whistleblowers are messengers. The current rhetoric surrounding the Whistleblower is to “shoot the messenger,” a phrase describing the scapegoating of the bearer of negative news. We must not allow whistleblowers to be mischaracterized as spies and traitors; we should stand up and support a system that allows individuals to come forward without fear of physical or mental retaliation by government officials. Failing to do so will have grave consequences for our democracy, rule of law, social order, and national security.

Philip H. Hilder

Former Federal Prosecutor

Counsel to Enron Whistleblower, Sherron Watkins