[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
PROTECTING THOSE WHO
BLOW THE WHISTLE ON
GOVERNMENT WRONGDOING
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON GOVERNMENT OPERATIONS
OF THE
COMMITTEE ON OVERSIGHT AND REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
JANUARY 28, 2020
__________
Serial No. 116-84
__________
Printed for the use of the Committee on Oversight and Reform
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available on: http://www.govinfo.gov
oversight.house.gov
_____
U.S. GOVERNMENT PUBLISHING OFFICE
39-579 WASHINGTON : 2020
COMMITTEE ON OVERSIGHT AND REFORM
CAROLYN B. MALONEY, New York, Chairwoman
Eleanor Holmes Norton, District of Jim Jordan, Ohio, Ranking Minority
Columbia Member
Wm. Lacy Clay, Missouri Paul A. Gosar, Arizona
Stephen F. Lynch, Massachusetts Virginia Foxx, North Carolina
Jim Cooper, Tennessee Thomas Massie, Kentucky
Gerald E. Connolly, Virginia Mark Meadows, North Carolina
Raja Krishnamoorthi, Illinois Jody B. Hice, Georgia
Jamie Raskin, Maryland Glenn Grothman, Wisconsin
Harley Rouda, California James Comer, Kentucky
Debbie Wasserman Schultz, Florida Michael Cloud, Texas
John P. Sarbanes, Maryland Bob Gibbs, Ohio
Peter Welch, Vermont Clay Higgins, Louisiana
Jackie Speier, California Ralph Norman, South Carolina
Robin L. Kelly, Illinois Chip Roy, Texas
Mark DeSaulnier, California Carol D. Miller, West Virginia
Brenda L. Lawrence, Michigan Mark E. Green, Tennessee
Stacey E. Plaskett, Virgin Islands Kelly Armstrong, North Dakota
Ro Khanna, California W. Gregory Steube, Florida
Jimmy Gomez, California Fred Keller, Pennsylvania
Alexandria Ocasio-Cortez, New York
Ayanna Pressley, Massachusetts
Rashida Tlaib, Michigan
Katie Porter, California
Deb Haaland, New Mexico
David Rapallo, Staff Director
Wendy Ginsberg, Subcommittee Staff Director
Taylor Jones, Clerk
Christopher Hixon, Minority Staff Director
Contact Number: 202-225-5051
------
Subcommittee on Government Operations
Gerald E. Connolly, Virginia, Chairman
Eleanor Holmes Norton, District of Mark Meadows, North Carolina,
Columbia, Ranking Minority Member
John P. Sarbanes, Maryland Thomas Massie, Kentucky
Jackie Speier, California Jody B. Hice, Georgia
Brenda L. Lawrence, Michigan Glenn Grothman, Wisconsin
Stacey E. Plaskett, Virgin Islands James Comer, Kentucky
Ro Khanna, California Ralph Norman, South Carolina
Stephen F. Lynch, Massachusetts W. Gregory Steube, Florida
Jamie Raskin, Maryland
C O N T E N T S
----------
Page
Hearing held on January 28, 2020................................. 1
Witnesses
The Honorable Glenn A. Fine, Principal Deputy Inspector General,
Department of Defense
Oral Statement................................................... 6
David K. Colapinto, Founder and General Counsel, National
Whistleblower Center
Oral Statement................................................... 8
Elizabeth Hempowicz, Director of Public Policy, Project on
Governemnt Oversight
Oral Statement................................................... 9
Paul Rosenzweig, Resident Senior Fellow, National Security and
Cybersecurity, R Street Institute
Oral Statement................................................... 11
The Honorable Michael E. Horowitz, Inspector General, U.S.
Department of Justice
Oral Statement................................................... 13
Written opening statements and statements for the witnesses are
available on the U.S. House of Representatives Document
Repository at: house.gov.
Index of Documents
----------
Documents listed below are available at:docs.house.gov.
* Written testimony from Tom Devine; submitted by Rep.
Connolly.
* Article from the Washington Post, "Schiff's claim that the
whistleblower has a `statutory right' to anonymity;" submitted
by Rep. Hice.
* Letter to Assistant Attorney General Steven Engel; submitted
by Rep. Sarbanes.
* An open letter to the American people signed by former
inspectors general; submitted by Rep. Speier.
* Letter from the National Whistleblower Center to Rep.
Connolly; submitted by Connolly.
* QFR's from Rep. Connolly to Mr. Rosenzweig at National
Security and Cybersecurity, R Street Institute; and responses.
* QFR's from Rep. Connolly to Mr. Horowitz at the U.S.
Department of Justice.
* QFR's from Rep. Connolly to Ms. Hempowicz at Project on
Government Oversight; and responses.
* QFR's from Rep. Connolly to Mr. Fine at the U.S. Department
of Defense; and responses.
* QFR's from Rep. Connolly to Mr. Colapinto at the National
Whistleblower Center; and responses.
PROTECTING THOSE WHO
BLOW THE WHISTLE ON
GOVERNMENT WRONGDOING
----------
Tuesday, January 28, 2020
House of Representatives
Subcommittee on Government Operations
Committee on Oversight and Reform
Washington, D.C.
The subcommittee met, pursuant to notice, at 2 p.m., in
room 2154, Rayburn House Office Building, Hon. Gerald E.
Connolly (chairman of the subcommittee) presiding.
Present: Representatives Connolly, Maloney, Norton,
Sarbanes, Speier, Khanna, Lynch, Raskin, Meadows, Jordan,
Massie, Hice, Grothman, and Comer.
Also present: Representative Armstrong.
Mr. Connolly. The subcommittee will come to order. Without
objection, the chair is authorized to declare a recess of the
committee at any time. And I'm going to recognize myself for my
opening statement and the ranking member will give his as soon
as he arrives. I'm beginning because I'm a little worried about
votes and want to try to give everyone the opportunity to be
heard.
We hold this hearing at a critical moment in our Nation's
history. A whistleblower who reported a reasonable belief about
a Presidential misconduct has become the target of the
President's wrath. In tweets and statements to the press, the
President himself has tried to identify the whistleblower and
has called upon others to publicly identify the whistleblower.
Threats against the whistleblower are reportedly increasing.
This is a sad and, for me, dangerous moment for
whistleblower. For many administrations, Federal employees and
contractors have come forward to expose waste, fraud, and
abuse. Whistleblowers have recovered billions of government
dollars from companies that attempted to defraud the
government. Whistleblowers exposed unacceptable cost overruns
on agency projects and programs within the government.
They improved quality control at our Nation's nuclear
facilities, fought for our veterans to receive the healthcare
services they have earned, ensured the food we eat is safe, and
exposed security breaches at our government's most sensitive
laboratories.
These brave whistleblowers risk their reputations, careers,
even their health and their family's safety sometimes when they
make such allegations. They take great professional and
personal risks.
For decades, Congress has worked on a bipartisan fashion to
protect these whistleblowers, and we've enacted laws that
encourage workers to come forward when they see waste, fraud,
and abuse. We've created laws that punish retaliation against
these whistleblowers.
I hope the hearing today helps us build on that important
work and addresses some of the challenges to our whistleblower
protections that have been brought to light by current
circumstances.
We rely on whistleblowers every day to help us with our
Oversight and Reform work. Without those whistleblowers,
rooting out mismanagement, abuse, and corruption would be very
difficult.
In fact, the most recent Office of Personnel Management
survey of Federal employee engagement found that only 64.5
percent of Federal employees believe that they can disclose
suspected violations of law, rule, or regulation without fear
of reprisal, 10.5 percent lower than what was reported by
private sector employees.
This hearing will clarify what a whistleblower is and what
protections a whistleblower is afforded. No one should be
punished for doing the right thing.
Contrary to the allegations of certain pundits,
whistleblowers can be anonymous or confidential, and they can
provide information secondhand, and they deserve protection
from retaliation.
Today, we also examine the roles of Congress, the
inspectors general, the Office of Special Counsel, and the
Merit Systems Protection Board in engaging whistleblowers,
protecting them, and pursuing meritorious allegations.
When whistleblowers produce credible information on
wrongdoing, these are the entities we expect to step into the
breach, to launch investigations and help the facts come to
light. If whistleblowers have no expectation that the
information they provide will help hold people and institutions
accountable, they have little incentive to come forward.
Finally, we'll examine whether existing laws are sufficient
enough to protect whistleblowers. The President's attacks on
the whistleblower have exposed some uncertainties and questions
about Congress' clear intent to provide robust protections to
those who expose wrongdoing in government. The administration's
attacks on whistleblowers certainly have had a chilling effect
on those who in other administrations would otherwise have come
forward to expose wrongdoing.
This hearing seeks to ensure that those protections are
clear and strong and that those who retaliate against
whistleblowers are held accountable.
The hearing is also a reminder that the Merit Systems
Protection Board, the independent agency that serves as the
guardian of the Federal merit system, still lacks a quorum and
remains unable to issue final decisions in cases where
employees' rights are at stake.
The Board is vital to whistleblowers in particular. In
fact, my first hearing as chairman of the subcommittee focused
on the need to get MSPB operating, and we have bipartisan
consensus about that goal. And yet here we are a year later and
the MSPB remains largely inoperable. It's a crisis that
continues, unfortunately, to be ignored.
In May, I introduced legislation with my friend, our late
chairman, Elijah Cummings, that would delegate temporary
authority to the MSPB general counsel to stay questionable
personnel actions brought by agencies against whistleblowers.
The general counsel's authority would expire once one Board
member is nominated and confirmed by the Senate. The bill,
which was voted out of this full committee on a bipartisan
voice vote, awaits floor action, and I hope that will happen
expeditiously.
Our efforts to get the MSPB running are in addition to
other bipartisan legislative and oversight efforts to support
whistleblowers. In the last Congress, I worked with my
colleague, Representative Sean Duffy, to enact the Follow the
Rules Act, which restored key whistleblower protection gutted
by the Supreme Court. The law prohibited agencies from
retaliating against employees who refused orders that, if
performed, would violate a rule or regulation.
In this Congress, I was joined by three of my Republican
colleagues, including my good friend, Ranking Member Mark
Meadows, in championing the Whistleblower Expansion Act of
2019. That bill seeks to clarify that subcontractors and
subgrantees are afforded whistleblower protection.
I trust this hearing continues a strong tradition of
bipartisan support for whistleblowers whose protections do not
change according to political context. In the words of
Republican Senator Chuck Grassley of Iowa, "Members of Congress
and the public," he said, "owe a debt of gratitude to our
fellow citizens who are willing to stand up for what's right,
despite the personal consequences they may face. Their efforts
should never be overlooked or taken for granted."
I hope to work across the aisle to clarify misconceptions
about whistleblowers and to enact legislation that may be
needed to clarify and bolster protections. Retaliation against
brave individuals who come forward must never be acceptable and
it's a disservice to our country and our government.
Finally, I want to remind everyone of the committee's Blow
the Whistle tip line. We, ourselves, have a tip line for
whistleblowers. Those who have information about waste, fraud,
and abuse, or gross mismanagement, can provide it to this
committee through our portal at [http:]oversight.house.gov. And
you can do it anonymously if you choose.
Mr. Jordan, are you going to have an opening statement for
the minority?
Thank you.
I recognize Mr. Jordan for his opening statement.
Mr. Jordan. Thank you, Mr. Chairman. Thanks for this
hearing. I want to thank all our witnesses for being here
today.
And I do look forward to talking about the whistleblower
issue--in particular, the whistleblower, the anonymous
whistleblower, with no firsthand knowledge, who had a bias
against the President, and who worked with Joe Biden, that
became the basis for what now our country has lived through for
four months. I look forward to getting into that issue and this
idea of anonymity versus any type of retaliatory action and
those issues.
But there's also another issue that is important. It's been
over six weeks since Inspector General Horowitz released his
report detailing the FBI's illegal surveillance of President
Donald Trump's campaign back in 2016, six weeks since the
inspector general published his findings that the FBI illegally
spied on then candidate Trump.
We know it was illegal spying because the Justice
Department admitted it. Just last week, the FBI admitted that
they didn't have evidence for at least two warrants on the
Trump campaign.
Inspector General Horowitz, we are glad that you're here.
But for the life of me, I can't imagine why this committee, the
committee that has direct jurisdiction over the inspectors
general, would not call you to testify about the serious FBI
abuses that you uncovered. It has been six weeks since you
published your 400-plus-page report about the FBI abusing the
FISA Court to spy on the Trump campaign and our chair has still
yet not invited you to speak.
Think about what the FBI did. They went to a secret court
to get a search warrant to spy on a Presidential campaign in
America. They did it.
This is what the FISA Judge, Rosemary Collyer, said just
last month, December 17, 2019, quote,``The frequency with which
representations made by FBI personnel turned out to be
unsupported or contradicted by information in their possession,
and with which they withheld information detrimental to their
case, calls into question whether information contained in
other FBI applications is reliable.''
Put that in plain English, you guys screwed up so much, how
could we trust any other representation you've made to the
court? That's what the FISA Court judge said last week in
response to Mr. Horowitz's 400-plus-page report.
Think about what was going on here. The FBI's basis in
asking the court to spy on the Trump campaign was, quote,
``unsupported or contradicted by information in their
possession.'' The FBI had evidence that members of the Trump
team were innocent and they held that back from the court.
Remember, they got the initial application, the initial
warrant, and then they did three renewals. Didn't tell the
court important information in those renewal applications.
The report is so unbelievable, you could not even make some
of this stuff up for a TV show. No American suspects things
like this occur. An FBI lawyer fabricated an email to support a
warrant on the Trump campaign. The FBI was doing this to a
Presidential candidate. Think about what they could do to
regular Americans. And that's why Judge Collyer ordered the FBI
to begin reviewing other applications.
And we still have not had a FISA hearing, neither here, or
maybe more importantly, in the Judiciary Committee. Chairman
Nadler's yet to call a hearing. This is a whistleblower
hearing. It's an important issue that I'm looking forward to
discussing. But I will also take this opportunity, as I said
earlier today, to ask a few questions about Inspector General
Horowitz's findings in his report.
The chair told us earlier this month that the inspector
general has already testified before the Senate and that his
presence before our committee is unnecessary. Since when did
the Oversight Committee say, ``Oh, if the Senate's doing it, we
don't have to have a hearing''? I've never heard that. In my 13
years in Congress, never heard that.
And imagine if it was reversed? Imagine if Inspector
General Horowitz uncovered the FBI fabricating emails to spy on
candidate Clinton. Bet you the Democrats would be having
hearings in this committee. We'd have already had several, both
in this committee and the Judiciary Committee.
So, this is important stuff and I look forward to dealing
with all these issues in this setting. And I want to thank our
witnesses, in particular Inspector General Horowitz, for your
work and for being here today.
And with that, Mr. Chairman, I yield back.
Mr. Connolly. I thank Mr. Jordan and certainly can relate
to the idea that we don't always have witnesses or hearings
that we would like. I have a whole list of witnesses that,
unfortunately, you, Mr. Jordan, don't support coming before
this committee.
Mr. Jordan. Well, you can call them now, you're the
chairman.
Mr. Connolly. Well, unfortunately, some of them would
require a subpoena and they are in the business of defying a
subpoena.
So, we can't have it both ways. We can have Mr. Horowitz. I
would like to have Mr. McGahn. I would like to have Mr. Bolton.
I'd like to have Mr. Mulvaney.
Mr. Jordan. Mr. McGahn testified for 30 hours.
Mr. Connolly. I know, but we can't quite sound so
sanctimonious about the lack of a hearing when in fact our own
record defies that, when our own record supports withholding
information relevant----
Mr. Jordan. Mr. Horowitz issued a 400-plus-page report last
month, Mr. Chairman.
Mr. Connolly. Yes. And the Democrats provided 28,000 pages
of documents to the U.S. Senate that could be enhanced it if we
had certain witnesses.
Mr. Jordan. The Senate had Mr. Horowitz testify----
Mr. Connolly. So, his point--your point is well taken, I'd
just amplify on it.
Now I want to welcome----
Mr. Jordan. I have unanimous consent request, if I could,
Mr. Chairman, just that Mr. Armstrong be allowed to participate
in today's hearing.
Mr. Connolly. Without objection, so ordered.
I now want to introduce our panel.
Welcome.
We are joined by the Honorable Glenn Fine, principal deputy
inspector general performing the duties of inspector general at
the Department of Defense.
By the way, our office wants to thank you, and I want to
thank you personally, for helping us on an amendment to the
defense bill regarding the incidence of domestic violence and
abuse. I think we had a very good outcome on a bipartisan
basis. Thanks to your office and yourself for that support.
David Colapinto, who is the founder and general counsel of
the National Whistleblower Center.
Welcome.
Elizabeth Hempowicz, director of public policy on the
Project of Government Oversight.
Welcome.
Paul Rosenzweig, resident senior fellow at the National
Security and Cybersecurity, R Street.
And the Honorable Michael Horowitz, the subject of some
previous conversation, inspector general at the Department of
Justice, a frequent flyer here at the Oversight and Reform
Committee.
Welcome back.
If you would all stand to be sworn in. It is the habit, as
you know, of our committee and subcommittees to swear in our
witnesses. If you'd raise your right hand.
Do you swear or affirm that the testimony you're about to
give is the truth, the whole truth, and nothing but the truth,
so help you God?
Let the record show--thank you--that all of our witnesses
answered that in the affirmative.
The microphones are sensitive, so please speak directly
into them. Pull them close to you when you are addressing us.
Your written statements, without objection, will be entered
in full into the record for this hearing, and so we encourage
you to summarize your written testimony as expeditiously as you
can. But you have a full five minutes if you want to use.
And we will start, Mr. Fine, with you. Welcome.
STATEMENT OF GLENN A. FINE, PRINCIPAL DEPUTY INSPECTOR GENERAL
PERFORMING THE DUTIES OF THE INSPECTOR GENERAL, DEPARTMENT OF
DEFENSE
Mr. Fine. Thank you, Chairman Connolly, Representative
Jordan, and members of the subcommittee. Thank you for inviting
me to testify today on the important contributions of
whistleblowers and the need to protect them from reprisal.
I have been serving as the head of the DOD Office of
Inspector General for over four years. Prior to this position,
in addition to working as an attorney in private practice, I
was the inspector general of the Department of Justice for 11
years, from 2000 to 2011.
In my written statement I discuss the significant
contributions of whistleblowers in the DOD, how the DOD OIG
evaluates and investigates whistleblower disclosures and
complaints of reprisal, and several best practices we have
implemented at the DOD OIG to improve our timeliness and
efficiency in whistleblower investigations. I will discuss a
few key points from that written statement.
First, whistleblowers play a crucial role in exposing
waste, fraud, abuse, misconduct, and other violations of law in
government programs and operations. These whistleblowers must
be protected from reprisal for their protected disclosures.
There are many examples of whistleblowers exposing
misconduct, saving taxpayer money, and improving the efficiency
and effectiveness of DOD operations. For example, the Glenn
Defense Marine Asia case, the so-called ``Fat Leonard'' case,
is one of the largest and most complex public corruption
criminal cases in DOD history, involving criminal conduct
throughout the Navy's Seventh Fleet. It started with a
whistleblower. And there are many other examples of
whistleblowers exposing wrongdoing, and I have provided a few
more in my written statement.
The DOD OIG takes seriously our responsibility to handle
the increasing number of whistleblower disclosures and
whistleblower reprisal allegations that we have received. We
have therefore implemented several best practices in recent
years to improve the effectiveness of our whistleblower
programs.
For example, to handle incoming whistleblower allegations
in a more timely and thorough manner, we have reallocated
significant resources to the DOD OIG's Administrative
Investigations component, which is responsible for the DOD
Hotline, senior official misconduct investigations, and
whistleblower reprisal investigations.
Specifically, we increased staffing in Administrative
Investigations from 114 positions in Fiscal Year 2016 to 154
positions in Fiscal Year 2019.
We also established an Alternative Dispute Resolution
program as an option for resolving certain whistleblower
reprisal complaints. ADR is a voluntary process, facilitated by
a DOD OIG attorney, in which the parties agree to use mediation
to seek resolution of a complaint prior to a potentially
lengthy investigative process.
Since October 2017, the DOD OIG ADR program has resulted in
settlements for 114 complainants and their employers. POGO has
highlighted our ADR program as a model program and recommended
that other IGs consider adopting similar programs.
We believe that IGs also have a responsibility to be
transparent with our findings, particularly when the matters
involve issues of significant public concern and relate to high
level officials' actions in their official duties. We have
therefore implemented a proactive release policy. We consider
each of our reports of investigation, including cases arising
from whistleblower disclosures and whistleblower reprisal
cases, for public release. POGO also recently noted our
decision to proactively release reports, calling it a powerful
means of increasing the government's accountability to the
public.
The DOD OIG's training curriculum for whistleblower
reprisal investigators is also a model program and covers all
aspects of evaluating, investigating, and reporting on reprisal
complaints. We regularly deliver our course to participants
throughout the DOD and to other Federal OIGs.
In addition, the DOD Hotline hosts a worldwide outreach
event each July on National Whistleblower Appreciation Day. The
event recognizes the importance of whistleblowers and also
provides a forum to share best practices.
Finally, when whistleblower reprisal cases are
substantiated, it is critical that management take prompt
remedial action to make whistleblowers whole. However, recently
we have seen a disturbing trend in the DOD disagreeing with the
results of our investigations or not taking disciplinary action
in substantiated reprisal cases without adequate or persuasive
explanations.
Failure to take action sends a message to agency managers
that reprisal will be tolerated and also to potential
whistleblowers that the system will not protect them.
In conclusion, whistleblowers regularly expose waste,
fraud, abuse, and misconduct, and the DOD OIG seeks to
investigate their allegations fully, fairly, in a timely way.
These whistleblowers must be protected from reprisal. And when
their allegations of reprisal are substantiated, prompt
corrective action should occur.
The DOD OIG has made significant improvements in our
handling of these important matters. We recognize that more
work needs to be done, and we will continue to focus attention
on this critical area.
That concludes my testimony. I'll be glad to answer any
questions.
Mr. Connolly. Thank you, Mr. Fine. Good job of summarizing.
Mr. Colapinto.
STATEMENT OF DAVID K. COLAPINTO, FOUNDER AND GENERAL COUNSEL,
NATIONAL WHISTLEBLOWER CENTER
Mr. Colapinto. Chairman Connolly, Representative Jordan,
and members of the committee, my name is David Colapinto. I'm a
cofounder of the National Whistleblower Center, a nonpartisan,
nonprofit organization in Washington, DC, that is devoted to
advancing the rights of whistleblowers.
I'm also a legal practitioner who has represented
whistleblowers in the government and private sectors for more
than 30 years.
Thank you for inviting me to testify to share my
perspective.
We can't begin to appreciate the courage of the women and
men in the Federal work force who report wrongdoing, either
openly through their chain of command at their agencies, or
confidentially to the inspector general or the Office of
Special Counsel, or even to Congress. Federal whistleblowers
face such enormous risks for reporting misconduct, waste,
fraud, abuse, and dangers to the public health and safety it's
a wonder that anyone does it at all. But they do it at the risk
of being called a rat, a snitch, a traitor, a spy, or worse,
not to mention facing discipline or removal for blowing the
whistle.
By contrast, the legal protections for whistleblowers in
private industry, publicly traded companies, Federal
contractors, and even in state and local government exceed the
whistleblower rights and remedies currently available to
Federal employees.
For effective anti-retaliation protections to work, there
must be, one, a safe channel for employees to report wrongdoing
confidentially; two, strong legal remedies to address
whistleblower retaliation whenever it occurs; three, a work
force culture that supports whistleblowers and encourages them
to report serious wrongdoing.
Fortunately, there is a strong foundation on which to
build. Congress can make whistleblowing effective in the
Federal Government by focusing on the following areas.
First, strengthen and clarify confidentiality. While
Congress has guaranteed whistleblower confidentiality for
decades, there exists some confusion about how it works.
Therefore, we suggest that Congress clarify Federal
whistleblower confidentiality to provide Federal employees with
the same remedies available under other whistleblower laws.
For example, in 2014 the U.S. Court of Appeals for the
Fifth Circuit held that an employer's breach of a
whistleblower's confidentiality in itself was a violation of
the corporate anti-retaliation statute and gave rise to an
award of noneconomic compensatory damages for private sector
employees.
In reaching this conclusion the court observed it is
inevitable that the disclosure of a whistleblower's identity
would result in ostracism and that no one volunteers for the
role of social pariah.
Congress should make clear that Federal employees have the
same remedies in the event that whistleblower confidentiality
is ever breached. Additionally, the identity of whistleblowers
and other personal information about them is stored in systems
of records protected by the Privacy Act. Congress should
strengthen the civil remedy provisions of the Privacy Act.
Second, provide district court access in retaliation cases.
Federal civil servants are the only major sector of the work
force that don't have the right to bring whistleblower cases to
U.S. district court and seek a jury trial. Congress must grant
this right as it has done for employees in the private sector.
Administrative remedies alone do not work. The backlog at
MSPB is near 2,500 cases and rising. The lack of court access
is a disincentive to whistleblowing and enables the wrongdoing.
Third, change the work force culture. In 2011, the history
of the whistleblowers of 1777 began to be retold and it was
discovered that the Continental Congress passed the first
whistleblower law in 1778, during the American Revolution. For
the past several years, the Senate has recognized July 30 as
National Whistleblower Appreciation Day to commemorate the
passage of the first whistleblower bill, and we appreciate
Members of the House, including Ranking Member Meadows, IG
Horowitz, and others for speaking at these events.
But Congress should make National Whistleblower
Appreciation Day permanent to recognize the importance of
whistleblowing as a fundamental policy. While this may appear
to be symbolic, it would help change the culture in the Federal
Government toward whistleblowers. It would remind us that
agencies need to be held accountable for waste and other forms
of serious misconduct. And it would encourage employees to
report serious wrongdoing without fear of reprisal.
Thank you very much, and I look forward to your questions.
Mr. Connolly. Thank you Mr. Colapinto.
Ms. Hempowicz.
STATEMENT OF ELIZABETH HEMPOWICZ, DIRECTOR OF PUBLIC POLICY,
PROJECT ON GOVERNMENT OVERSIGHT
Ms. Hempowicz. Chairman Connolly and Ranking Member Jordan,
thank you for inviting me to testify as part of this hearing on
the importance of protecting whistleblowers. I'm Liz Hempowicz,
director of public policy at the Project on Government
Oversight.
Whistleblowers play a crucial role in holding our
government accountable, but the system is failing them. As
Ranking Member Meadows has said, for those who blow the whistle
retaliation is almost certain.
While Congress has codified legal protections for
whistleblowers, systemic failures often undermine those
protections.
To address these, POGO recommends that Congress allow
whistleblowers to take their retaliation complaints directly to
court; ensure that whistleblowers facing reprisal are entitled
to interim relief while their cases are pending; ensure that
whistleblowers in the intelligence community and Armed Forces
have access to independent enforcement of their legal
protections and rebalance the burden of proof standard applied
to whistleblowers in the Armed Forces so they are on equal
footing with civilians blowing the whistle; expand prohibited
personnel practices under the Whistleblower Protection Act to
include retaliatory investigations and security clearance
action; and clarify that whistleblowers are entitled to
anonymity and can enforce that right.
As Mr. Colapinto just told you, Federal whistleblowers are
still the only major sector of the work force that does not
have the right to have their cases tried before a jury. Even
contractors who have traditionally had weaker protections than
their Federal employee counterparts have this statutory right.
Congress should finally allow whistleblowers to bypass the
cumbersome administrative process currently in place and take
their retaliation complaints directly to court.
Furthermore, whistleblowers in the Intelligence Community
lack an independent mechanism to enforce their statutory
protections entirely. The last level of review in an
intelligence community whistleblower's case is a panel of three
inspectors general whose decisions are merely recommendations
that the head of the whistleblower's agency can disregard
without consequence.
Similarly, as Mr. Fine mentioned, the Secretary of Defense
is the final decisionmaker when it comes to addressing
retaliation against military whistleblowers. This system
renders their protections all but meaningless.
But it isn't just enforcement mechanisms that are failing.
As Congress codifies additional prohibited actions of reprisal,
those who retaliate against whistleblowers continue to adjust
their approach to skirt accountability.
Whistleblowers across the board are frequently subjected to
retaliatory investigations which are used to harass
whistleblowers and tie up resources unnecessarily. Congress
should expand prohibited retaliation across all government
sectors to include these spurious investigations.
And if Congress truly wants to ensure that blowing the
whistle is not a career-ending decision for Federal employees,
it must also make retaliatory security clearance action, such
as revoking someone's clearance, a violation of the
Whistleblower Protection Act.
Additionally, recent events have highlighted a troubling
lack of clarity around whether whistleblowers have a legal
right to anonymity. For example, The Washington Post is suing
the Special Inspector General for Afghanistan Reconstruction to
force the release of the identities of individuals who spoke to
the watchdog about the war in Afghanistan.
While IGs are obligated to maintain a whistleblower's
confidentiality unless disclosure is unavoidable, IGs are not
the only people in government who are in a position to out a
whistleblower. For example, if a whistleblower raises concerns
with their supervisor before formally filing a complaint, then
that supervisor is in a position to out the whistleblower and
the explicit prohibition in the IG Act does not apply. It is an
open question whether the law currently covers outing a
whistleblower as reprisal and that should be clarify.
Maintaining anonymity is one of the best ways for
whistleblowers to protect themselves from professional and
personal retaliation. Indeed, both this committee's majority
and minority websites promise to maintain the confidentiality
of whistleblowers who disclose wrongdoing to the committee.
Before I conclude, I want to take a moment to address two
pieces of misinformation about whistleblowers that have been
repeated with some frequency.
Some have argued inaccurately that the recent Ukraine
whistleblower improperly colluded with the House Intelligence
Committee before making their disclosure and that the
whistleblower's reported bias against the President undermined
the disclosure.
For intelligence community whistleblowers the consequences
of not following the law to the letter can be dire. Not only
would it negate their ability to benefit from whistleblower
protection, but they might also find themselves facing criminal
prosecution, as has happened repeatedly in the past.
It is entirely appropriate for a whistleblower to ask the
committee of jurisdiction for guidance on how to proceed in
compliance with the law. Furthermore, even if the whistleblower
had approached the committee to make a disclosure, that would
not violate the law.
Congress also made clear through legislation in 2012 that a
whistleblower's motive could not be used as a reason to deny
them legal protections for making a disclosure. That's because
motive does not determine whether a whistleblower's disclosure
is legitimate. Exposing a whistleblower serves no public
benefit and instead undermines the public interest in providing
strong safe channels for insiders to report wrongdoing.
Whistleblowers and taxpayers alike deserve a system that
makes it easy and safe for whistleblowers in any sector of
government to report wrongdoing without putting their personal
or professional well-being on the line, but we have a ways to
go before that is the case.
I look forward to your questions.
Mr. Connolly. Thank you. Great timing.
Mr. Rosenzweig.
STATEMENT OF PAUL ROSENZWEIG, RESIDENT SENIOR FELLOW, NATIONAL
SECURITY AND CYBERSECURITY, R STREET
Mr. Rosenzweig. Chairman Connolly, Ranking Member Jordan,
members of the subcommittee, I thank you for the invitation to
appear before you today and present testimony.
My name is Paul Rosenzweig, and I am a senior fellow at the
R Street Institute. I'm also a principal and founder of Red
Branch Consulting, a small consulting company, and a
professorial lecturer in law at George Washington University.
In addition to being a lecturer at George Washington, I am
a former adjunct lecturer at the Medill School of Journalism at
Northwestern University, where along with two colleagues I co-
edited a book, ``Whistleblowers, Leaks and the Media: The First
Amendment and National Security,'' that was jointly published
by Medill and the American Bar Association. That work, along
with my experience in the national security field, brings me
here today.
Though I'm generally thought of as a conservative, my
testimony today is, I hope, nonpartisan in nature, since I
believe that the issue of whistleblower protections is one of
enduring interest to both parties and indeed to all Americans.
I'd summarize my testimony with the following four basic
points.
First, in American history whistleblowers are not an
afterthought. Though they are not mentioned in the
Constitution, this have a history that predates our Nation's
founding. Much like the free press, whistleblowers are an
essential safety valve of accountability and transparency that
allows America to have an effective and empowered executive
branch while maintaining control over it to prevent a descent
into autocracy.
Second, the existing structure of whistleblower protections
is at least to some degree grounded in constitutional freedoms
and the First Amendment.
Beyond that, Congress' history of support for Federal
whistleblowers is embodied in a series of laws, the most recent
of which, the Whistleblower Protection Enhancement Act of 2012,
confirmed Congress' longstanding view, dating back to before
the Nation's founding, that providing whistleblowers with
adequate protection and incentives to come forward serves
American interests.
Third, for that reason it is utterly unsurprising that
whistleblower protections have always had bipartisan support,
both in Congress and in the courts. Figures who hold views as
diverse as Senator Charles Grassley and Justice Sonia Sotomayor
have spoken eloquently about the value of whistleblowers.
My own view, that of a longtime conservative attorney, is
that whistleblowers serve a critical function in our structure
of democratic accountability. In any system where the
electorate is the ultimate arbiter, the value of transparency
in executive action is of paramount importance.
Fourth, finally, I offer a word about the idea of
confidentiality and anonymity, a topic that I know is of some
controversy today.
I would hope that the temper of the moment would not
undermine our well-grounded belief that whistleblower anonymity
when asked for is a fundamentally positive value. All too
frequently whistleblowers have faced retaliation for their
actions.
If we wish them to have a positive incentive to come
forward--and I think we all agree that we do--then it is, in my
view, essential to provide whistleblowers with the protection
of anonymity when they wish it.
All people respond to incentives and any wise system of law
will recognize that.
Thank you very much, and I look forward to answering your
questions.
Mr. Connolly. Thank you so much.
Mr. Horowitz.
STATEMENT OF MICHAEL E. HOROWITZ, INSPECTOR GENERAL, U.S.
DEPARTMENT OF JUSTICE
Mr. Horowitz. Thank you, Chairman Connolly, Ranking Member
Jordan, members of the subcommittee. Thank you for inviting me
to testify today.
Information provided by whistleblowers plays a critical
role in the ability of inspectors general to conduct
nonpartisan independent oversight of Federal programs and
operations.
As DOJ inspector general and as chair of the Council of the
Inspectors General on Integrity and Efficiency, or CIGIE, one
of my highest priorities has been to educate Federal employees
about the importance of whistleblowing and to ensure that those
who blow the whistle are protected from retaliation or even the
threat of retaliation.
For example, in July 2019, as part of CIGIE's enhancement
of Oversight.gov, CIGIE launched a new whistleblower protection
page that provides informational resources to assist potential
whistleblowers in determining where to make a protected
disclosure or where to file a retaliation claim.
Also in July of last year CIGIE issued a report,
``Whistleblowing Works: How Inspectors General Respond to and
Protect Whistleblowers,'' which illustrates the important
contributions of whistleblowers to OIG efforts to root out
waste, fraud, abuse, and misconduct, and to improve government
programs. The report can be found on Oversight.gov.
Additionally, CIGIE is actively complying with the
Whistleblower Protection Coordination Act, which this committee
and Congress passed in 2018, by helping to develop best
practices for handling protected disclosures and enforcing
whistleblower protection laws.
Let me turn briefly to CIGIE's efforts to protect
whistleblowers from retaliation.
Whistleblowers perform an essential public service in
ensuring accountability in government, and no one should be
retaliated against or threatened with retaliation for bringing
forward information that they reasonably believe evidences
waste, fraud, abuse, or misconduct.
This is not just a principle that IGs agree with, it's a
principle enshrined in the law. On a bipartisan basis Congress
has passed numerous laws to protect whistleblower
confidentiality and prohibit retaliation against
whistleblowers.
For example, the IG Act expressly prohibits inspectors
general from disclosing the identity of a whistleblower without
their consent except in very limited circumstances. And the
Whistleblower Protection Act of 1989 makes it unlawful for any
government actor to retaliate or threaten to retaliate against
a whistleblower who has brought a reasonable concern of
misconduct forward.
Since 1989, Congress has extended similar protections to
Federal contractors and grantees, intelligence community
employees and contractors, and military personnel.
Under each of these laws inspectors general play a central
role in receiving evidence of criminal or administrative
wrongdoing because we have the independence and expertise to
credibly assess the information and take appropriate steps to
correct identified misconduct. And under every applicable anti-
retaliation law employees are specifically protected for
disclosing information to an inspector general.
When a whistleblower alleges retaliation for providing
allegations of wrongdoing, inspectors general have the
responsibility to conduct a thorough and independent assessment
of the facts. OIG whistleblower investigations not only seek
justice on behalf of whistleblowers, but also seek to deter
potential future reprisals and to promote accountability for
those who have retaliated or engaged in other misconduct.
To effectively conduct such investigations, OIGs must have
access to all relevant testimony and witnesses, including
individuals who may resign or retire during the course of the
OIG investigation. However, with the exception of the
Department of Defense OIG, OIGs do not have the authority to
compel testimony from former agency employees in whistleblower
retaliation investigations or in other investigations.
Our efforts to investigate whistleblower retaliation,
promote accountability, and deter future misconduct have
hampered our ability to receive testimony from former
employees. To remedy this, CIGIE has identified testimonial
subpoena authority as one of its primary legislative
priorities, and this committee has worked in the past on a
bipartisan basis with us to support such legislation.
The IG community understands the potential concerns with
granting such authority and therefore supports incorporating
appropriate controls to ensure this authority is exercised
properly.
I look forward to working with this committee as we have in
prior Congresses to advance this crucial measure that would
both enhance whistleblower protection and independent
oversight.
Thank you, and I look forward to answering your questions.
Mr. Connolly. Thank you, Mr. Horowitz.
The chair now recognizes the distinguished chairwoman of
the full committee, Mrs. Maloney, for five minutes.
Mrs. Maloney. Thank you. I thank the distinguished Chairman
Connolly for holding this important hearing today on
whistleblower protections.
Whistleblowers are vital to Congress' constitutional
oversight responsibilities. They are often the first line of
defense in fighting waste, fraud, and abuse. And without strong
protections and the ability to remain anonymous, whistleblowers
could face retaliation. This could, I believe it would chill
their willingness to report abuses to us, and that would hurt
our ability to fulfill our constitutional duties of oversight.
Interfering with an employee's communications with Congress
is already illegal, and so is retaliating against employees who
engage in such communications. But as we have seen this past
year, some of our leaders do not seem to value whistleblowers
in the same way that we do.
For these reasons, I am working with Chairman Connolly and
several other colleagues on legislation to improve existing
protections for whistleblowers even further.
And now I want to move to questions.
Ms. Hempowicz, as you know, it is well recognized that
whistleblower disclosures are a vital asset in promoting
government accountability and limiting waste, fraud, and abuse.
Whistleblowers make disclosures at great risk to their careers,
in some cases to their well-being and literally to their lives.
And for this reason it is absolutely essential that the
confidentiality of whistleblowers is protected. And without
government assurance that a whistleblower can maintain being
anonymous, a chilling effect may occur.
So, can you tell us why you believe it's important that
whistleblower confidentiality be protected? And do you think
that they are sufficiently protected?
Ms. Hempowicz. Thank you for that question, Chairwoman.
Absolutely, I think anonymity should be guaranteed to
whistleblowers that want it. I don't think every whistleblower
wants to remain anonymous, but that should be their decision. I
think not guaranteeing that right runs the risk of deterring
would-be whistleblowers from coming forward, and that means
waste, fraud, and abuse is not reported.
So, I think to make sure that whistleblowers do come
forward, every protection needs to be put into the law to make
sure that they have an incentive to come forward.
Mrs. Maloney. OK.
Mr. Colapinto, do you believe that we have sufficient
confidentiality now for protection or is there more that we can
do or should do?
Mr. Colapinto. There is a lot more that we could do.
Mrs. Maloney. Such as?
Mr. Colapinto. Well, for example, the whistleblower
provisions of the Federal civil service laws can be amended in
order to make it actionable so that employees can bring a
complaint in the event that they are harassed or their
confidentiality is breached.
There should also be stiffer penalties and the Privacy Act
can be enhanced to provide for civil remedies as well. I think
that Congress should also look at stiffer penalties for
managers and supervisors who may, in fact, breach the
confidentiality.
I have never seen arguments like we are seeing out there
today where Congress passes very clear prohibitions for OSC and
the inspectors general not to reveal the identity of
whistleblowers when they come forward confidentially and
somehow that has turned into, well, that only applies to them,
so anybody else could breach the confidentiality. I think that
there is a lot more that can be done to ensure that everyone
gets the message that once a whistleblower goes confidential or
anonymous they are not to be unmasked.
Mrs. Maloney. OK.
Also, Mr. Rosenzweig, would you followup? Do you believe
there are currently weaknesses in it for Federal employee
whistleblowers? And what more could we do to protect them?
Mr. Rosenzweig. Well, as Mr. Colapinto said, Federal
whistleblowers don't have a private cause of action against
those who might disclose their identity. They have weakened
protections within the workplace itself.
But I think more to the point, the degradation in
confidentiality and anonymity that we promise whistleblowers is
eroding the ability of Federal employees who uncover waste,
fraud, and abuse to transmit those allegations with the candor
and forthrightness that we as citizens and you as Congress
would wish to have. You must want, I think, to have a fulsome--
a full disclosure from anybody who has such information, and by
threatening confidentiality you erode that.
Mrs. Maloney. And my time has expired. I have a lot more
questions. This is an important issue and it is one that is
very relevant today.
I yield back. Thank you.
Mr. Connolly. I thank the distinguished chair.
The chair recognizes Mr. Meadows, the ranking member of the
subcommittee.
Mr. Meadows. I thank the chairman. I'm going to yield my
time to the gentleman from Kentucky, Mr. Massie.
Mr. Connolly. Mr. Massie is recognized for his five
minutes.
Mr. Massie. Thank you, Mr. Chairman.
In March 2013 former Director of National Intelligence
James Clapper spoke an untruth when he was asked by Senator
Wyden if the government was collecting information on millions
of Americans. Three months later, Edward Snowden leaked
documents that showed that what James Clapper said was, indeed,
not true. James Clapper later characterized his answer as the
least untruthful thing that he could say.
Later, people criticized Edward Snowden for not using
whistleblower protections, but then this debate came about:
about whether contractors were covered, because Edward Snowden
was not an employee. I've gone back and looked at President
Obama's policy directive of 2012 and it is silent on the issue
of contractor and doesn't necessarily define employee.
Mr. Horowitz, today, I know there have been some revisions
and some changes and maybe some clarifications, today would a
contractor like Edward Snowden be covered under the
whistleblower protections if he wished to disclose the
information that was in his possession that showed that James
Clapper was not accurate in his answer?
Mr. Horowitz. Well, it's my understanding that under the
law as it currently exists that members of the intelligence
community have the means by which in a whistleblower protection
law specific to the intelligence community to make a report to
the inspector general and, depending upon the circumstances,
have that information----
Mr. Massie. I hate to interrupt you, but members of the
intelligence community, is that defined as contractors who work
in the intelligence community? Does that include people like
Edward Snowden?
Mr. Horowitz. My understanding is that, yes, contractors
can report such conduct to the IG over which agency they're
working for as a contractor.
Mr. Massie. Can they also come to this committee?
Mr. Horowitz. I believe they then would have to follow the
Intelligence Community Whistleblower Protection Act and
provisions there.
Mr. Massie. Are the rules different for them than
employees?
Mr. Horowitz. I don't believe so, but I would----
Mr. Massie. Can an employee come to this committee?
Mr. Horowitz. I'm sorry?
Mr. Massie. Could an employee who wishes to be a
whistleblower----
Mr. Horowitz. They would have to go through the steps under
the law. The Intelligence Community Whistleblower Protection
Act provides the means by which that would occur.
Mr. Massie. So, they couldn't come directly to this
committee or another committee?
Mr. Horowitz. The way Congress has set up the statutory
scheme is that in the intelligence community--and this is, I
believe, in section 8H of the IG Act now--employees go through
their IGs, who make a finding.
Mr. Massie. Employees, does that include contractors?
Mr. Horowitz. I believe it does.
Mr. Massie. You believe, but you're not sure and you are
the IG
Mr. Horowitz. I can certainly get back to you on it.
Mr. Massie. OK. That's really important, because I think
perspective whistleblowers are watching this hearing, and they
want some clarity on this. I know we don't have--let me move
on.
Ms. Hempowicz. May I answer your question?
Mr. Massie. Sure.
Ms. Hempowicz. So, contractors are afforded the same
whistleblower protections under law now that intelligence
community employees have. And the law says that they can go to
the congressional Intelligence Committees.
Mr. Massie. OK. Great. I would feel more comfortable if the
IGs knew that and could repeat that in a hearing here to us
today.
So, the process--what is the process? Let me back up.
Does it cover former employees? Let's say somebody is fired
and they want to be a whistleblower. Can they be a
whistleblower after they're fired? Do they still qualify?
Ms. Hempowicz. For the most part, yes, sir.
Mr. Massie. OK. And so, what's the process they follow?
Like a former employee that wants to be a whistleblower, Mr.
Horowitz, what's the process they should follow?
Mr. Horowitz. So, under 8H of the act they would take it to
the inspector general for the agency that they were employed
by. The inspector general makes a legal determination about the
allegations. The allegation----
Mr. Massie. OK. I've got 30 seconds, let me just finish
this line of questioning. I'm sorry to interrupt you.
So, what about leaking it to a newspaper reporter, would
that work, without going to the IG?
Mr. Horowitz. Leaking it to--if it's classified
information, which is what we are usually talking about in
intelligence, you cannot leak classified information to----
Mr. Massie. Can you just leak other things? What if you
leak it to an intermediary?
Mr. Horowitz. Actually there is a Supreme Court case on
this, McLean v. United States.
Mr. Massie. OK. What if you leak it to an intermediary who
leaks it to a reporter?
Mr. Horowitz. It depends on----
Mr. Massie. Let me ask you this. Did James Comey----
Mr. Horowitz. Can I finish?
Mr. Massie. Let me ask one last question.
Mr. Horowitz. Can I finish my answer?
Mr. Massie. Did James Comey follow the proper procedure for
whistleblowers when he used an intermediary to leak to the
newspaper?
Mr. Connolly. In one second.
Mr. Horowitz. So, let me answer the question before, which
is----
Mr. Massie. I'm most interested in the last question.
Mr. Horowitz. I'll get to that in a minute.
But so there is clarity here, because the FBI whistleblower
laws are somewhat unique, because they have been carved out of
the whistleblower laws----
Mr. Massie. Can they leak to the newspaper?
Mr. Connolly. No, no, no, no, no. The gentleman's time has
expired.
Mr. Horowitz. So, under the McLean case, which was a
Supreme Court decision involving a then air marshal at the
Department of Homeland Security, they attempted to fire or did
fire that individual for disclosing information that they had
not authorized an air marshal to disclose to a newspaper. The
Supreme Court found that that was a violation of the law to
fire him and that the employee was not prohibited from making
the disclosure----
Mr. Connolly. Thank you, Mr. Horowitz.
Mr. Horowitz. So, let me just, if I could, getting back to
the FBI, that is different, and as we laid out in our report
about Mr. Comey's disclosure of the information to the
newspapers, that was not consistent with the procedures of the
FBI.
Mr. Connolly. Thank you very much.
Mr. Massie. Thank you, Mr. Chairman, for indulging me.
Mr. Connolly. Thank you. And did you--all right.
The chair now recognizes the gentleman from Maryland, Mr.
Sarbanes, for five minutes.
Mr. Sarbanes. Thank, Mr. Chairman.
Thanks to the panel. Obviously a very, very important
topic.
I just wanted to make the point, first of all, I thank all
of you who've pointed out that a whistleblower stepping
forward, particularly when they are working inside our Federal
Government and within agencies that have a particular mission,
they are anything but a traitor and I think in so many ways a
patriot, because in that context what they are stepping up to
do is make sure that the mission of their agency is carried out
in a way that meets the expectations of the taxpayers out
there, American citizens, certainly Members of Congress. So,
everything we can do to protect them I think obviously is
critical.
Mr. Colapinto, I want to ask you a question, based on
actually testimony in Ms. Hempowicz's testimony, I think
written, where she talks about--we all know this--that many
lawmakers and the President in fact argued that the Ukraine
whistleblower should not be afforded confidentiality or other
whistleblower protections because the whistleblower conveyed
information that was, quote, ``secondhand.''
So, Mr. Colapinto, can you just talk for a moment, is
secondhand information common from whistleblowers? Is that
something that we see? Is that an important source of
information?
Mr. Colapinto. It's very common. And in fact earlier this
month there was actually an article published in the Harvard
Business Review about an academic study or a study in the field
of whistleblowing which found that secondhand information in
the corporate whistleblowing context is actually more important
and it actually--it leads to more whistleblower disclosures by
encouraging secondhand information.
And secondhand information oftentimes is better than
firsthand information because it leads to the early discovery
of problems that aren't known. If you wait for the firsthand
reporter, it may be far down--the misconduct may be far down
the line, leading to a bigger problem.
So, encouraging more whistleblowing, encouraging secondhand
reporting----
Mr. Sarbanes. It's sort of like an early--you're saying
it's kind of like an early warning system.
Mr. Colapinto. That's exactly what whistleblowers are, and
that's what should be encourage.
Mr. Sarbanes. Yes. But the secondhand information in
particular may be able to play that role.
In a December 2019 survey which the Government Business
Council conducted of 691 Federal civilian employees, 34 percent
answered, and I quote, ``The attacks on the whistleblower by
President Trump and various congressional Republicans have made
it much less or somewhat less likely that I will report an act
of perceived wrongdoing to the appropriate authorities.''
Mr. Rosenzweig, are you concerned about the impact of the
rhetoric that we hear sometimes from some of our colleagues
when they are referring to the whistleblower who alleged
misconduct by the President?
Mr. Rosenzweig. Well, sir, I went to the University of
Chicago. They taught us that incentives are everything, that
people are essentially rational actors who respond to external
stimulus.
If whistleblowers perceive a greater risk to their personal
livelihoods, to their employment, to their personal safety they
will be less likely to come forward. That is as sure as night
follows day and rain follows the sun.
So, yes, it is inevitable that adverse rhetoric that
challenges the integrity of or the confidentiality of
whistleblowers will have the second order effect of
systematically decreasing the likelihood that whistleblowers
will be willing to come forward. That's an iron law of human
nature and of economics.
Mr. Sarbanes. And it's not just the President's sort of
undermined that perspective with respect to whistleblowers. I
want to thank Mr. Horowitz and Mr. Fine and 65 other Federal
IGs who sent a letter to the assistant attorney general, Steven
Engel, writing that you had concerns that the Office of Legal
Counsel's opinion would have a chilling effect on employees,
contractors, and grantees.
And that's an important thing to put in the record. I'd ask
that we do that, unanimous consent to place that letter into
the record.
Mr. Connolly. Without objection.
Mr. Sarbanes. The last thing I'd just like to ask, and any
of you can volunteer an answer here, is as we've been
discussing it I've been thinking to myself we have these
statutes, obviously they're incredibly important, but creating
a culture inside of the government, inside of these agencies
among supervisors, others who are going to be in a position to
receive a whistleblower complaint that says this is an
appropriate action for you to take and we are here to protect
you. In other words, a culture that says that this is something
that's important to do and ought to be respected.
What kind of training or other things happen, and could
there be more, to make sure that that culture, that positive
reinforcing culture exists? Anybody who wants to respond could.
Mr. Fine. If I could respond. That is a key, to make sure
that we are training, educating employees and supervisors about
their rights and responsibilities with regard to whistleblowers
and not to treat whistleblowers as traitors or anything like
that, but that they provide valuable information.
Not all of it is supported. Sometimes they don't know all
the facts. But they should be encouraged to provide that
information and we need to investigate it fully, fairly, and
take each complaint seriously.
And what is important, too, as I point out in my testimony,
is when we do substantiate cases of retaliation or reprisal
that management takes appropriate action. And that sends a
message that reprisal will not be tolerated and that
disclosures are valued. And if they do not do that in a timely
way, in a full way, in a fair way, it sends the opposite
message. So, that is very important as well.
Mr. Connolly. Thank you, Mr. Fine. The gentleman's time has
expired.
The chair recognizes the gentleman from Georgia, Mr. Hice,
for his five minutes.
Mr. Hice. Thank you, Mr. Chairman, and thank you for
holding this hearing.
Thank each of our panelists for being here.
Important discussion about whistleblowers, and, tragically,
I believe, we're watching the protection of whistleblowers
these days become very much twisted in politics. This is
something I hear constantly in my district, the concern that
certain actors within our political system at this particular
point in time, have especially the whistleblower statutes to
attack the President. And case in point, while we're right here
today right now, across the way in the Senate, they are
litigating a baseless impeachment case that all started with
the whistleblower.
Of course, there's been a lot of media attention added to
the drama, but there's still a lot of questions that are
surrounding the spark that got this whole thing started. Now
here's what we do know. There's a lot we don't know, but here's
what we do know: On August 12th, 2019, an anonymous individual
filed a complaint with the inspector general of the intel
community against the President. We know that. We also know
that the individual admitted to having no actual firsthand
knowledge of the events described in their complaint. Instead,
they relied on rumors, secondhand information, and public news
clippings. We know that. We also know that press reports have
said that this individual admitted to having a close
relationship with former Vice President and current
Presidential candidate Joe Biden. We know that this individual
was in secret communication with House Intel Chairman Adam
Schiff and/or his staff.
So, to this day, as far as I know, Chairman Schiff is the
only person who knows the identity of this particular
whistleblower. Those are some things we know. There's a lot of
things we don't know. A lot of questions we have, like not only
the identity of the whistleblower but whether anonymity is
actually protected in this case. Does this individual, in fact,
warrant whistleblower status? That's a legitimate question in
this particular situation. The extent of the individual's
political bias and to what degree this individual coordinated
with Chairman Schiff and/or his staff.
Now all this stuff eventually is going to come out. In this
city, of course, it always does. There will eventually be a day
of reckoning, but, Mr. Horowitz, I realize that the intel
community is not within your jurisdiction--I get that--but you
have vast experience, and so, based on your experience overall,
have you ever seen a case similar to this where there is an
anonymous complaint with no firsthand information against the
President by an individual as having communications with the
staff of the other political party?
Mr. Horowitz. I'm not aware of a case other than this one
personally on those facts, but just to be clear, we get
anonymous complaints all the time on our----
Mr. Hice. Yes, but this one, in particular, like this, and
I want to keep going because----
Mr. Horowitz. I don't have any particular knowledge.
Mr. Hice. OK. I didn't think you would. Again, relying on
your experience, are you familiar with any Federal law that
would grant anonymity to this individual given the
circumstances here?
Mr. Horowitz. The IG Act requires us as IGs to protect the
identity of individuals who come to us absent very limited
circumstances. So, anybody who comes to an IG, we're going to
be in a situation protecting the identity.
Mr. Hice. OK. It's my understanding that the IG, the intel
IG, is to protect the--not to disclose the identity, but I'm
not familiar with any statute that would guarantee that.
Mr. Horowitz. The IG Act doesn't have 100 percent guarantee
in it.
Mr. Hice. OK.
Mr. Horowitz. It has a limited exception in there. For
example, we face this when there's a court order and a subpoena
of some sort that would require someone to testify in court.
That would then be up to a judge to decide how to proceed.
Mr. Hice. Mr. Chairman, I would ask unanimous consent to
put into the record an article from The Washington Post that
deals with this whole issue.
Mr. Connolly. Without objection.
Mr. Hice. Thank you.
Mr. Connolly. I thank the gentleman.
The chair now recognizes the gentlelady from California for
her five minutes, Ms. Speier.
Ms. Speier. Thank you, Mr. Chairman.
And thank you all for being here. At the outset, I would
like to submit an open letter to the American people signed by
former inspectors general who are interested in making sure
that all Americans can be guaranteed safety, and that's what
whistleblowers provide.
Mr. Connolly. Without objection, it will entered into the
record.
Ms. Speier. Thank you.
The inspector general of the intelligence community
testified before the Intelligence Committee that he had
investigated the complaint, found it to be credible and urgent.
That was then sent to the Director of National Intelligence who
decided not to do what the law requires, which is to
automatically send it to the committees of jurisdiction, the
Intelligence Committees of both Houses, but to tell the White
House. So, I guess my question to any one of you is, what do we
have to do within that particular law to make sure that the
Intelligence Committees get access to complaints that are filed
that are deemed to be both urgent and credible?
Ms. Hempowicz. I can take this question. I think it's
important to remove some of those steps in between. So, I think
it should be possible for the inspector general of the
intelligence community to transmit those credible complaints of
urgent concern directly to the committees of jurisdiction
rather than go through the Director of National Intelligence
for starters.
Ms. Speier. So, historically, they always have been sent to
the committees, even when they weren't found to be credible or
urgent. So, this was a divergence that took place that,
frankly, smacks of political interests, does it not? You don't
have to answer that.
Mr. Fine, you note in your written statement that there's a
small but disturbing trend and called to account DOD managers
that have failed to take action even after your office has
substantiated claims of reprisal having taken place. I'm
disheartened to hear about the results of the Leidos case in
which a subcontractor employee reported about sexual
harassment; your office provided an investigative report
recommending compensatory damages; and the Under Secretary of
Defense for Acquisition and Sustainment disagreed without real
explanation.
Why do we spend taxpayer money empowering you to do
investigations to substantiate complaints, you make
recommendations, and then the agency can decline to move
forward with the investigation and the results that you have
come up with?
Mr. Fine. Well, that's the scheme that--that's the
legislation that has been created that we are not the final
arbiters of that. We're the investigators. We did do a full
investigation. We provided the reasons why, a detailed analysis
about why we thought it was substantiated. It took us a long
time to get a response from the Department. When we did get a
response, it was not very detailed or thorough or persuasive.
We pushed back, and eventually we got the ultimate decision by
the Under Secretary. We then came to Congress and notified you
of that because the power that we have is the power of the
spotlight. We shine a spotlight on this, and we do think it is
important that the components--the agencies take action. We're
not infallible. We're not always right, but we try to explain
why we reached our conclusions, and we think the Department
ought to do the same thing and take appropriate action.
It is a disturbing trend. I point out in my testimony that
there are at least two other cases where the same thing
happened. They declined to take action in a substantiated case
without providing detailed or persuasive reasons why. That is a
disturbing trend, and we think that a spotlight ought to be
shined on that and questions ought to be asked about that.
Ms. Speier. Well, beyond a spotlight, what would you
recommend? Maybe you should take this as a request that you can
respond to the full committee.
What kind of changes would you like to see in the law so
that this discretion isn't such that the facts that are
verified and your recommendations are made and people are
denied justice?
Mr. Fine. Well, the Senate Armed Service Committee in the
NDAA, a conference report to the NDAA, required that both we
and the IG for the Department of Homeland Security put in our
semi-annual reports any time that that happens or that the
Department has not responded in a timely way. So, I think
transparency is an important thing. I don't think we ought to
be the final arbiters; we're not judge and jury. But we ought
to provide transparency on when this happens, and then people
ought to be asked about this. I mean, hearings are good,
questions are good, and I think that can have a positive impact
as well.
Mr. Connolly. Thank you, Mr. Fine.
The gentlelady's time has expired.
The chair now recognizes the gentleman from Kentucky for
his five minutes of questioning.
Mr. Massie. Thank you, Mr. Chairman.
Because I used Mr. Meadows' time, I'm going to yield to my
five minutes to Mr. Jordan.
Mr. Connolly. Mr. Jordan is recognized for five minutes.
Mr. Jordan. I thank the gentleman for yielding.
I thank the chairman.
Ms. Hempowicz, in your closing statement--closing part of
your opening statement, you said: Some have argued inaccurately
that the recent Ukraine whistleblower improperly colluded with
the House Intelligence Committee.
``Some have argued inaccurately.'' How do you know that the
argument's not accurate?
Ms. Hempowicz. Well, I based that simply on what's been
said by the Acting Director of National Intelligence and the
intelligence community inspector general as well as the
whistleblower's attorneys who say that this individual is----
Mr. Jordan. You have no knowledge--you didn't talk to
Chairman Schiff, have you talked to Chairman Schiff about it?
Ms. Hempowicz. No, sir.
Mr. Jordan. Did you talk to his staff about the interaction
they had with the whistleblower?
Ms. Hempowicz. No, sir.
Mr. Jordan. Did you talk to the ICIG about the interaction
he had with the whistleblower?
Ms. Hempowicz. No, sir, but I will say the committee staff
did also say that they have talked publicly about----
Mr. Jordan. Well, you made a blanket statement. You said:
Some have argued inaccurately.
We have no idea what took place between the whistleblower
and Chairman Schiff's staff, and yet you come in front of the
Oversight Committee on a hearing on whistleblowers, and you
say: Some have argued inaccurately that the recent Ukraine
whistleblower improperly colluded with the House Intelligence
Community.
We have no idea.
Ms. Hempowicz. Well, sir, I'm not quite sure what improper
collusion would look like in that aspect because the
intelligence community whistleblower would be able to go to the
committee and make their disclosure under the law. So, I'm not
quite sure----
Mr. Jordan. But----
Ms. Hempowicz [continuing]. What they could've done that
would have been improper.
Mr. Jordan. Well, we know the chairman thought that, when
he was first asked about it, he thought it was better off to
say something that wasn't accurate--namely, that his staff had
no contact with the whistleblower--only to have to correct that
a few days later and say: Whoops, we actually did.
So, for some reason, he was willing to hide it, and yet you
come here and say there was nothing done improperly. And you've
not talked to any of the people who participated, and, frankly,
none of us have. No one in the country has.
And I've got a chance to look at a little bit of the ICIG's
testimony. It's interesting that Chairman Schiff has failed to
release the inspector general of the intelligence community's
testimony. He did have a chance to go through and look at all
this, but, you know, Chairman Schiff interviewed 18 people;
he's released 17 transcripts of those 18 people that he
interviewed in this impeachment inquiry but not the inspector
general.
You go on to say this: Before making their disclosure and
that, the quote, "whistleblower reported bias against the
President" undermined the disclosure.
So, bias doesn't matter?
Ms. Hempowicz. According to Congress, no. You guys updated
the law in 2012 to say that motive couldn't be considered a
factor that would undermine whistleblower protection because
the facts matter more.
Mr. Jordan. As far as whistleblower protection goes, I get
that, but motive always matters. When you're evaluating the
claim of anybody, you always have to look at bias and motive.
And yet, again, you come in front of the Oversight Committee
today on a hearing about whistleblowers, and you say bias
doesn't matter, particularly bias against the President of the
United States in an impeachment proceeding doesn't matter?
Ms. Hempowicz. It certainly doesn't matter more than the
facts, and I believe that most of the facts alleged in the
underlying complaint have been corroborated.
Mr. Jordan. Actually, there are all kinds of things that
the whistleblower got wrong in the complaint because, again, as
Mr. Hice pointed out, the whistleblower had no firsthand
knowledge. Do you know, Ms. Hempowicz--you seem to be an expert
on all this--do you know if we ever in the impeachment inquiry
in the House, do you know if we talked to any of the people who
did have firsthand knowledge?
Ms. Hempowicz. I think you have not, and I think mostly
because they have refused to come before the committee.
Mr. Jordan. No. I'm talking about the people the
whistleblower alleges in his complaint. Bullet point No. 1 of
the whistleblower's complaint, he says this: Over the past four
months, more than half a dozen U.S. officials have informed me
about the complaint.
Do you know who those more than half a dozen U.S. officials
are?
Ms. Hempowicz. No, sir.
Mr. Jordan. I don't either. No one knows because, guess
what? We didn't get to talk to the whistleblower. The
whistleblower, who is biased, and the whistleblower, who met
with Adam Schiff's staff and then Adam Schiff said, ``No, he
didn't,'' only later to have to correct that and say, ``Well,
yes, he did.''
And remember what else Mr. Schiff said about the
whistleblower. Early on in this process back in September,
guess what Adam Schiff said? ``We look forward to hearing from
the whistleblower.'' Remember that?
Ms. Hempowicz. I believe that's when the whistleblower
wanted to testify publicly.
Mr. Jordan. That's when we all wanted to hear from the
whistleblower, including Adam Schiff, but suddenly that changed
when Adam Schiff made the other statement that they hadn't
talked to--that his staff had not met with him when in fact,
they had. I just find it amazing that you can say, ``Some have
argued inaccurately that the recent whistleblower improperly
colluded with House Intelligence Committee,'' and you have no
knowledge whether it was accurate or not, whether they colluded
or not. Sure looks like they did, particularly in light of the
fact that the chairman tried to hide the fact that they met in
the first place.
Ms. Hempowicz. Again, I'm just not quite sure what could be
improper about those conversations, and so it's difficult for
me to imagine what could have gone on, but I can't speak to why
Chairman Schiff said what he said. Like I said earlier, I have
not spoken with him.
Mr. Jordan. I thank the chairman. I yield back.
Mr. Connolly. Thank you, Mr. Jordan.
The chair now recognizes the gentleman from Maryland, Mr.
Raskin, for five minutes.
Mr. Raskin. Mr. Chairman, thank you very much, and I want
to thank you and all of our colleagues for your indulgence. I'm
chairing another hearing right now, and so let me proceed
quickly.
Ms. Hempowicz, let me come quickly to you because you're
with the Project on Government Oversight, which represents
whistleblowers who are blowing the whistle on waste and fraud
and abuse, governmental corruption, waste of the taxpayers'
money. Is that right?
Ms. Hempowicz. We advocate for whistleblowers; we don't
represent them.
Mr. Raskin. You advocate for them?
Ms. Hempowicz. But we advocate for them.
Mr. Raskin. OK. So, in other words, you would not represent
them in court, but you advocate for their interests----
Ms. Hempowicz. Yes, sir.
Mr. Raskin [continuing]. And to protect them. Why do people
get so mad about whistleblowers? Why are people so upset about
whistleblowers?
Ms. Hempowicz. I'm not quite sure, honestly. I think
whistleblowers are patriots who are doing what all Federal
employees take an oath to do, which is to uphold the laws of
our country and whistleblowers come forward when they see that
those laws, rules, and regulations are not being upheld. So, I
don't know how to answer your question, but I'm probably not
the right person to ask that.
Mr. Raskin. Well, we have had to legislate to protect
whistleblowers in the past because they often irritate people.
People get mad at them. They're powerful interests that come
down hard on them.
Mr. Colapinto, let me ask you, what's going on when people
get incensed and irate about whistleblowers?
Mr. Colapinto. ``Nobody likes a rat.'' That was the name of
a title of another academic study that created a whistleblowing
game. And what they found out was that, even amongst people who
were honest in a group, once the whistleblower's identity
became known that they had blown the whistle, the members of
the honest group shunned that person. It is part of human
nature that, if your integrity or your ethics are attacked or
your political position is attacked, people will circle the
wagons, and they will strike out and create intimidation. And
that's what happens with whistleblowers.
Mr. Raskin. No, that's fascinating. You're telling me, as a
matter of social psychology and empirical documentation, you're
saying that, even when a whistleblower comes forward to tell
the truth and the revelations and the disclosures are proven to
be true and, say, they saved the government millions of dollars
or they blow the whistle on a criminal scheme or corruption,
still people are mad at them for what they did?
Mr. Colapinto. Yes, because what is going on is a person is
raising an issue of importance that may impinge on budgets; it
may embarrass the department; and people don't want to be
associated with that because whistleblowing is known to be a
stigma and is career-limiting.
Mr. Raskin. OK. So, why is it that, in the strong
democracies on Earth, we've adopted whistleblower protections?
What is the social function played by protections of the
whistleblowers?
Mr. Colapinto. Because we want to save taxpayers' money. We
want government to be efficient. We want to combat government
waste. We want to combat fraud, and in the final analysis,
nobody really wants to work for a crook or to have a government
that's inefficient and wastes taxpayer money.
Mr. Raskin. What are the major gaps that still exist in
Federal statutory protections for whistleblowers now? If you
could write a new statute to fill it in, what are the major
areas that you would target?
Mr. Colapinto. Well, there are three things, as I mentioned
in my opening statement, was that, you know, I would recommend
and suggest increasing confidentiality to allow people to bring
an action if their confidentiality or privacy is breached after
they were guaranteed confidentiality under the statute.
The second thing----
Mr. Raskin. Let me pause you right there because there's a
big attack on confidentiality of whistleblowers right now,
saying, ``We want to out the whistleblowers. We want to hold
them up to the light,'' and so on.
Explain why whistleblowers should have confidentiality and
how that doesn't endanger anybody else's due process?
Mr. Colapinto. Because what it does is that it provides a
safe channel. Any organization, whether it's a corporation or
the government in a large department, should be encouraging
whistleblowing. It makes them more effective. It makes them
more efficient. And by making it confidential, you eliminate
that stigma hopefully, unless the person has gone internal
first and is widely known or is fingerprinted.
Mr. Raskin. Well, why would somebody want to maintain their
confidentiality if they're blowing the whistle on corporate
corruption or child sexual abuse or someone stealing money?
Mr. Colapinto. Because the track record has shown that
people lose their careers.
Mr. Connolly. Thank you, Mr. Colapinto.
The gentleman's time has expired, but I thank him for
coming from his hearing to this important hearing.
The other gentleman from Kentucky, Mr. Comer, is recognized
for five minutes.
Mr. Comer. Thank you, Mr. Chairman.
I think we all know by now the FBI doctored an email to get
a FISA warrant in order to spy on the Trump campaign and that's
what I want to address.
Mr. Horowitz, last month, in an exchange with Senator Lee,
you testified you couldn't rule out political bias contributing
to surveilling Trump campaign associates. You testified, and I
quote, "We were not in a position with the evidence we had to
make that conclusion, but I am not ruling it out," unquote.
I want to go over a few of those biased messages this FBI
lawyer texted when candidate Trump was elected right after the
election. Quote,"I'm so stressed out--I'm so stressed about
what I could've done differently.
Next quote, "I just can't imagine the systematic
disassembly of the progress we made over the last eight years."
Next quote, "The crazies finally won."
Next quote, "This is the tea party on steroids."
Next quote, "The GOP is going to be lost. They have to deal
with an incumbent in four years."
Next quote,"We have to fight this, again."
And the last quote from the lawyer with the FBI, quote,
"Pence is stupid."
Now, he also texted someone else, "Viva la resistance. Of
course, that's French for `long live the resistance'.'' He
texted that a few weeks after Donald Trump was elected
President. Is that correct?
Mr. Horowitz. That's correct.
Mr. Comer. Are you aware if this FBI lawyer interviewed
another Trump campaign associate, not just Carter Page?
Mr. Horowitz. As I sit here, I don't recall that person
interviewing.
Mr. Comer. This lawyer also interviewed George
Papadopoulos. Now, are you reviewing other legislative steps
this lawyer's taken?
Mr. Horowitz. So, the FISA court issued an order ordering
the Department to do that. We're obviously following up on our
report and are watching their responses, both to the court and
to us.
Mr. Comer. Do you know if attorney John Durham is looking
into this FBI lawyer?
Mr. Horowitz. I have a general understanding of what Mr.
Durham's working on, but I would direct you to him.
Mr. Comer. So, did you speak with John Durham about this
FBI lawyer?
Mr. Horowitz. We referred the matter to the attorney
general per the IG Act for his handling.
Mr. Comer. So, tell me, can you tell us anything you two
discussed even if it's in general terms?
Mr. Horowitz. I'm not going to get into discussions that I
had with Mr. Durham. We had some general discussions along the
way about the substance of our report, about generally his
work, but I'd ask you to go to him to inquire about any
referrals that he may be handling.
Mr. Comer. OK.
Inspector General, you testified last month this FBI lawyer
doctored an email to support a probable cause against Trump's
campaign associate Carter Page. You also testified Carter Page,
the Trump campaign associate, and I quote, "I do not think the
Department of Justice fairly treated these FISAs, and he--
referring to Carter Page I believe--was on the receiving end,"
end quote.
Is that correct?
Mr. Horowitz. That I recall generally that testimony, yes.
Mr. Comer. If you were a target of a FISA warrant after
everything you uncovered, if you were a target, would you trust
the team the FBI assembled in the Carter Page investigation?
Would you trust that you would be given a fair shake?
Mr. Horowitz. I hope I wasn't the target of the FISA.
Mr. Comer. Don't we all.
Mr. Horowitz. Certainly this team that handled this FISA
did not do what they were supposed to do. The rules were clear.
They didn't follow the rules, and so I think it's appropriate
what the court is looking at here to see what other matters
they worked on.
Mr. Comer. Well, thank you very much, Mr. Horowitz.
And, Mr. Chairman, I yield back.
Mr. Connolly. I thank the gentleman.
The chair now recognizes the gentlelady from the District
of Columbia, Ms. Norton, for five minutes.
Ms. Norton. Mr. Chairman, I want to thank you for this
timely hearing on whistleblowers.
I do want to note that the ranking member of the full
committee spoke of the bias of the whistleblower even though
ultimately witnesses came forward and essentially proved that
what the whistleblower had alleged about concerning the
President was true. So, I don't understand that any bias was
ever founded. The opposite seems to have been found.
I'm interested in the roles of the multiple whistleblowers.
The whistleblower can apparently speak to inspector general,
speak to the Office of Special Counsel, to the Merit Systems
Protection Board, and when I see a scenario where there could
be some confusion as to where to go, Mr. Horowitz, is there any
role for the Office of Inspector General in overseeing the
whistleblower investigations reported to the IG offices?
Mr. Horowitz. I'm sorry. Could you just say that, again,
Congresswoman?
Ms. Norton. Given the multiple places that a whistleblower
can go to, I'm asking is there any role for your office, the
Office of Inspector General, in overseeing the whistleblower
investigations reported to various IG offices?
Mr. Horowitz. So, as chair of the council of IGs, what we
have tried to do is couple things. One, set up the
whistleblower page I mentioned earlier on Oversight.gov that
provides information on where whistleblowers can go because it
can be, as you said, confusing where to report it. We also
formed a working group in 2015 shortly after I became chair.
So, we are getting together regularly with all of the
whistleblower protection coordinators in the IG community to
share best practices and so that we can talk with one another
about what we're each finding, challenges from our agency,
challenges within our work.
Ms. Norton. I just wish if you found your way to anybody,
that would be regarded as done so that the jurisdictional
questions wouldn't matter; the point is to encourage
whistleblowing.
Mr. Fine, I have here a report of the GAO. I want to quote
from just a sentence, "The General Accounting Office found that
the Office of Management and Budget withheld from obligation
funds appropriated to the Department of Defense for security
assistance to Ukraine." What is the role of the Department of
Defense inspector general in investigating such a withholding?
Mr. Fine. So, that relates to the whole Ukrainian matter,
and we were asked by several Senators to get involved, and what
we--we discussed it with our colleagues at Justice and the
State Department and decided that, in light of the inquiry by
the House and the impeachment inquiry and even the trial by the
Senate, it would not be appropriate for the IGs to, at this
point, investigate those matters because it would overlap,
duplicate, and potentially interfere with that very important
inquiry. We have an obligation to make sure that we do not do
that.
Ms. Norton. Overlap with what? Interfere with what?
Mr. Fine. There are similar witnesses, potentially similar
witnesses, and we do not want to be interviewing witnesses that
perhaps the House wanted to interview or that potentially could
be part of the trial. It's the same principle we apply when
there's a criminal case ongoing. We would not open an
investigation and interfere with that and would defer to that.
Now, I know the impeachment is not a criminal matter, but
it is not a usual congressional inquiry. So, we responded to
the Senators saying we declined to open an investigation at
this time, but down the road, if there's things that needed to
be reviewed, we would consider it at that point.
Ms. Norton. I should certainly hope that, at some point,
when this matter is straightened out, we could learn whether
the IG at the Department of Defense had a role and what that
role should be or should have been.
I'm interested in enforcement. What good is the law if
there isn't any enforcement? And I understand that enforcement
lies with Merit System Protection Board. Now they don't have a
quorum, and it looks like they haven't had a quorum for a
while.
Ms. Hempowicz, what happens when Federal employees do not
have access to the MSPB or to any enforcement mechanism?
Ms. Hempowicz. Unfortunately, what happens is they're in
administrative bureaucratic limbo.
Ms. Norton. How long has it been that MSPB has not had a
quorum?
Ms. Hempowicz. Three years. Almost three years.
Ms. Norton. So, there's been no enforcement whatsoever?
Ms. Hempowicz. No, ma'am. There's a case backlog of 2,500
cases right now.
Ms. Norton. I don't know if there's anything we can do, Mr.
Chairman.
Mr. Connolly. Well, as I indicated earlier, as you know,
Ms. Norton, Mr. Cummings, the late Mr. Cummings, and I have a
bill that would at least allow some administrative action by
the attorney until there's a board member confirmed so that we
eat into that backlog and we protect whistleblowers. That bill
passed this committee unanimously on a voice vote, and we're
waiting for some floor action. So, any help you can provide
with your influence would be great.
Ms. Hempowicz. Can I make one suggestion?
Ms. Norton. Yes, please.
Ms. Hempowicz. I think, even beyond restoring the quorum to
the MSPB, it's really--it's vital to give whistleblowers the
right to go to a jury trial, and I think that would also help
reduce that backlog.
Mr. Connolly. We heard that from your testimony.
Ms. Norton. I was going to ask you about the jury trial.
Thank you very much.
Mr. Connolly. Thank you.
The gentleman from Massachusetts, Mr. Lynch, is recognized.
Mr. Lynch. Thank you, Mr. Chairman. I want to thank all----
Mr. Connolly. You get five more minutes?
Mr. Jordan. Yep.
Mr. Connolly. Please forgive me, Mr. Lynch.
Mr. Lynch. I will yield.
Mr. Connolly. I thought Mr. Jordan had used his five
minutes.
Mr. Kelly, as soon as we're finished, we'll come to you.
Thank you, Mr. Jordan.
Mr. Jordan. I thank the chairman.
Mr. Horowitz, was Carter Page an operational contact for
another Federal agency?
Mr. Horowitz. He was.
Mr. Jordan. Did the Department of Justice tell that--did
the Department of Justice and the FBI tell that to the FISA
court when they went to get the FISA application on Mr. Page?
Mr. Horowitz. They did not.
Mr. Jordan. They did not. Did an FBI lawyer doctor an email
that was part of the FISA application to get this warrant on
Carter Page?
Mr. Horowitz. Doctored an email THAT went to the affiant
who swore out the FISA application. The email itself wasn't
part of the application.
Mr. Jordan. Understand. And the way it was doctored was not
just doctored, they directly changed it. It said it went from
Carter Page--was a source to Carter Page was not a source. Is
that right?
Mr. Horowitz. Correct.
Mr. Jordan. Directly the opposite meaning and that became
part of the basis to go to the court and get the warrant on
Carter Page.
Mr. Horowitz. That was relied upon by the FBI agent who
swore out the----
Mr. Jordan. I've seen correspondence between Christopher
Steele, the guy who wrote the dossier that was taken to the
court, correspondence between him at the Department of Justice
where he indicated to them that--to the Department of Justice--
that he was desperate to stop Trump from becoming President.
Did that get communicated to the FISA court when they were
getting the warrant to spy on Carter Page?
Mr. Horowitz. It did not. He relayed that to Bruce Ohr, who
relayed it to the FBI.
Mr. Jordan. Yep. I also know that the Clinton campaign paid
the law firm Perkins Coie, who hired Fusion GPS, who hired Mr.
Steele, who actually put together the dossier as we just said.
Did the fact that the Clinton campaign was paying for this
operation, this dossier, did that get communicated to the FISA
court?
Mr. Horowitz. That information did not.
Mr. Jordan. Did not get communicated to the FISA court. How
many false or misleading communications were made to the FISA
court relative to the Carter Page warrant?
Mr. Horowitz. We identified 17 significant omissions or
inaccuracies in the report. That's not all of them. That's the
17 we thought were the most material.
Mr. Jordan. So, more than 17 times they misled the court?
Mr. Horowitz. We--we identified a bunch of instances of
inaccuracies. I think I'd leave it to others to decide and the
court to decide what was misleading or not.
Mr. Jordan. January 29, 2018, two years ago, chairman of
the House Intel Committee, Chairman Schiff, said, that the FBI
and DOJ officials did not abuse the FISA process. Is that an
accurate statement, Mr. Horowitz?
Mr. Horowitz. Well, the Department has submitted a letter
to the court now that has been made public where the Department
has determined that the last two FISAs at a minimum did not
have and did not support probable cause.
Mr. Jordan. Mr. Schiff also said, on January 29, 2018, that
the DOJ and FBI, quote, "made only narrow use of information
from Christopher Steele's sources about Carter Page's specific
activities in 2016." Is that accurate?
Mr. Horowitz. I don't know the specific wording of what was
said there, but as we reported, we found that the dossier that
the Steele reporting was central and essential to the
application for the initial FISA and to the subsequent FISA.
Mr. Jordan. I think you said, on December 11th, in front of
the Senate that FBI's FISA applications relied entirely on
Steele's and his primary subsource reporting to make
allegations against Mr. Page.
Mr. Horowitz. Just to add, it was--to be precise, for the
purpose of connecting Carter Page--alleged activities Carter
Page's alleged activities to Russia to the Trump campaign.
There were--there was other information in there concerning Mr.
Page not connected to the Trump campaign.
Mr. Jordan. Did the FBI corroborate the allegations against
Mr. Page?
Mr. Horowitz. The allegations in the FISA about his
purported serving as an intermediary between Russia and the
Trump campaign, they did not substantiate.
Mr. Jordan. So, again, two years ago, on January 29, 2018,
when Adam Schiff said the Department of Justice provided
additional information obtained through multiple independent
sources that corroborated Steele's reporting, that would be
inaccurate as well?
Mr. Horowitz. As we noted in the report, they provided some
information, mostly from public sourcing, that they found
corroborated the reporting, what they did not find was
corroboration for the allegations connecting Mr. Page to Russia
to the Trump campaign.
Mr. Jordan. Finally, let me ask this, also two years ago,
Mr. Schiff said on -- the Department of Justice met the rigor,
transparency, and evidentiary basis needed to meet FISA's
probable cause requirement.
Is that an accurate statement?
Mr. Horowitz. Given the nature and the number of omissions
and inaccuracies in there, we certainly didn't characterize
what they had done as following the rules or complying with the
rigor that's required of a FISA application.
Mr. Jordan. You not only didn't characterize it in the way
Mr. Schiff portrayed it two years ago and stated in his memo.
You said this, "The IG report found 51 factual assertions in
Carter Page's FISA applications that, quote, 'had no supporting
documentation. Supporting document doesn't state fact, or
supporting document shows factual assertion is inaccurate'." Is
that right?
Mr. Horowitz. And that's my reference. Before at least 17,
there were many others that we have in our appendix that are
supposed be followed through the Woods procedures, which is the
factual----
Mr. Jordan. I understand----
Mr. Horowitz [continuing]. Were not there. Some are
significant; some are not as significant. But there shouldn't
be any.
Mr. Jordan. One last question, are there any other reports
coming? What are you working on right now in this area?
Mr. Horowitz. We are doing a followup audit because one of
the questions we had coming away from this was, is this
happened--did this happen only in this case, or does the
failures we heard about in the Woods procedures and that we saw
in the Woods procedures, in fact, other counterintelligence
FISAs and, something we hadn't looked at, counterterrorism
related FISAs----
Mr. Jordan. Can you give us a little preview of what you
may be finding and when that report may be----
Mr. Connolly. Thank you, Mr. Horowitz.
The gentleman's time has expired.
Mr. Lynch.
I'm worried about the clock because votes have been called.
Mr. Lynch. Thank you, Mr. Chairman.
I appreciate that. I want to thank all the witnesses for
your helping the committee with its work. Mr. Horowitz, have
you ever seen a situation where the President and Members of
Congress openly and aggressively attack a whistleblower, like
we have with the Ukraine whistleblower?
Mr. Horowitz. I can't say I've personally----
Mr. Lynch. Anybody else on the panel ever see anybody, any
whistleblower attack, especially after the report of the phone
call was basically corroborated, remember? Anybody ever see a
situation like that where a whistleblower was attacked by
Members of Congress who were supposed to be the recipients of
intelligence and information from a whistleblower? Anybody ever
see anything like that happen? Me either.
Ms. Hempowicz?
Ms. Hempowicz. I would say not like this.
Mr. Lynch. Not like this. Right. So, what do you think the
effect on other whistleblowers will be if this whistleblower
who basically got--based on the transcript--got it right, got
it right. Under the Whistleblower Protection Act, if you see
any evidence of misconduct, waste, fraud, or abuse, abuse of
power, you're supposed to report that. And by all the evidence,
it appears that this whistleblower, in fact, did just that. And
then, in return for that whistleblower speaking out at great
risk to themselves, they get attacked by the President who, on
September 26, said that this whistleblower was akin to a
traitor and a spy and should be treated as we used to treat
traitors and spies. What kind of effect do you think that will
have on whistleblowers, Ms. Hempowicz?
Ms. Hempowicz. I would say it's certainly going to chill
others from coming forward, especially in the intelligence
community where it's already almost impossible to enforce their
legal protections.
Mr. Lynch. Mr. Horowitz, you've been up before this
committee. You're a frequent flyer here and you do some amazing
work. I give you great credit. What do you think that would--on
the minds of other Federal employees who are being asked to
report misconduct, this--and it appears, based on the evidence,
based on the transcript, that there certainly was some evidence
there of abuse of power--remember, a whistleblower doesn't have
to prove the case, he just raises his hand and says: Something
is not right here, and I'm reporting this, and I want this
looked at.
So, when a whistleblower does that and then Members of
Congress, the President likens that person to a traitor and a
spy and suggests that that person should be treated as a
traitor or a spy like we used to do in the old days when they
were shot, what do you think that impact has on a potential
whistleblower out there who observes misconduct within the
government?
Mr. Horowitz. Individuals who step forward and report
wrongdoing or what they reasonably believe to be wrongdoing
should not face even the threat of retaliation. We want people
to come forward.
It's then our jobs as IGs and others who investigate this
to assess whether the information is supported, but you don't
want to attack and you shouldn't be attacking the person who
brings that forward. They may be right; they may not be right.
But that's for us to assess, not to attack the people that come
forward.
Mr. Lynch. If now we have a situation where Members of
Congress who, again, are going to be the recipients of this
intelligence, to protect the public trust, to protect the
taxpayer, to protect our Government, if we, in turn, attack the
whistleblower for reporting misconduct, should there not be--
should there not be penalties on us for violating the law,
public officials who go for revenge, you know? I'll ask you,
Ms. Hempowicz. You're an advocate for functioning
whistleblowers within government. Oftentimes these departments
are so densely controlled and they're so distant from the
public and from the rest of Congress, we are at a loss--we
can't drill down and find out what some of these agencies, tens
of thousands of employees, we can't figure out what everybody's
doing so we rely on this self-reporting. I mean, should we
protect those individuals from retaliation from Congress as
well?
Ms. Hempowicz. Absolutely. And I would also add that the
White House isn't covered by the whistleblower protection
statutes and so it should extend to them as well.
Mr. Lynch. Thank you.
Mr. Chairman, my time is expired. I yield back.
Mr. Connolly. Thank you, Mr. Lynch.
The chair recognizes the gentleman from Wisconsin.
Mr. Grothman. Yes. Mr. Horowitz, just because over the
years we've asked you tons of questions, I'm comfortable with
you, and I'll ask you some more questions. You testified last
month, and I'll quote, "I do not think the Department of
Justice fairly treated these FISAs, and Carter Page was on the
receiving end."
OK. Is that true?
Mr. Horowitz. I recall that.
Mr. Grothman. You also found--you found several major
issues with FBI, an FBI case agent who was investigating Carter
Page's investigation. We'll call him Case Agent No. 1. I just
wanted to go over a few of them. Case Agent No. 1 never shared
with the Justice Department information that showed Carter Page
was innocent. For instance, he never met Paul Manafort. He told
you he couldn't recall why that happened, correct?
Mr. Horowitz. That's correct.
Mr. Grothman. OK. Case Agent No. 1 wrote that Christopher
Steele, the source for Carter Page's FISA, that Steele's work
was previously used in criminal proceedings when that wasn't
true and contradicted Steele's FBI handler, correct?
Mr. Horowitz. They never shared it with the FBI handler--
handling agent who said that he thought it wasn't fully
accurate.
Mr. Grothman. OK. Case Agent No. 1 did not share with the
Justice Department information that showed Papadopoulos,
another campaign associate, of being innocent. Case Agent No. 1
just said, ``It may have been an oversight,'' correct?
Mr. Horowitz. There were interactions by FBI confidential
human source with Mr. Papadopoulos where Mr. Papadopoulos made
statements that were inconsistent with the allegations in the
FISA, and that information was not shared, as it should have
been, with the Justice Department.
Mr. Grothman. OK. How can you miss something that important
on investigation as sensitive as looking into a Presidential
candidate? Don't you think that's odd?
Mr. Horowitz. That was our concern with the explanations we
received why we noted in our report that we didn't find those
explanations convincing in the least.
Mr. Grothman. OK. Again, with regard to Case Agent 1, who
was in charge of putting together the Woods file for accuracy,
you found 51 errors in his Woods file verification, right?
Mr. Horowitz. That's correct.
Mr. Grothman. Kind of scary, isn't it?
Mr. Horowitz. Yes.
Mr. Grothman. Real scary. Quoting right from your report
again, quote, "Case Agent 1 provided the DOJ attorney with
inaccurate information that failed to disclose the extent and
nature of Page's relationship with that agency," end quote.
Correct?
Mr. Horowitz. Neither that case agent or anybody at the FBI
shared with the Justice Department the information that Mr.
Page had been previously in operational contact for another
government agency.
Mr. Grothman. Isn't that kind of scary? Kind of leads one
not to trust the government, doesn't it?
Mr. Horowitz. That information came to the FBI in August
2016, well before any of the FISA applications and it should
have prompted interactions with the other government agency to
understand the nature of that relationship and how it might've
impacted going forward with any FISA.
Mr. Grothman. It's sad, isn't it? It kind of--it makes one
not surprised at all why on all levels of our government,
there's not trust in our government, right?
Mr. Horowitz. It certainly creates the very deep concern
about authorities like FISA, the use of those authorities, and
I think that's why you see some of the orders coming from the
FISA court now.
Mr. Grothman. OK. I'm almost out of time. Case Agent 1 was
actually promoted in the middle of the investigation, right?
Mr. Horowitz. Case Agent 1 was promoted during the course
of the investigation.
Mr. Grothman. I know. Another case agent took over day-to-
day and this new case agent questioned if it was prudent to
renew the FISA warrant on Carter Page but got overruled by Case
Agent 1, correct?
Mr. Horowitz. Two agents spoke about as we relayed in the
report why, not only was the FISA going forward, but why Mr.
Page was even still the subject of the investigation. It's not
clear to us who made the ultimate decision to nevertheless go
forward with the next FISA renewal.
Mr. Grothman. OK. You didn't name Case Agent 1 in your
report, but could you at least tell us, did this guy's boss
know what he did?
Mr. Horowitz. So, Case Agent 1's supervisor, who was a
supervisory special agent, was responsible for double checking
and following up on the Woods process where all of those errors
were located, and that supervisory special agent also did not
do their job in following up and identifying those issues.
Mr. Grothman. Does the FBI Director Wray, does he know who
this is, who this agent is?
Mr. Horowitz. Yes, he does.
Mr. Grothman. And does the Attorney General know?
Mr. Horowitz. I believe he does.
Mr. Grothman. OK. What did Director Wray say to you about
this case agent? Did he say anything to you about him or her?
Mr. Horowitz. He was very concerned about, frankly, the
activity for all of the individuals who had responsibilities
and didn't conform to what they are required to do under FBI
procedures.
Mr. Grothman. Is he still at his promoted position?
Mr. Horowitz. I don't know as I sit here.
Mr. Connolly. Thank you.
Mr. Grothman. OK. Thanks. Thanks for giving me the extra
time.
Mr. Connolly. Absolutely. Thank you, Mr. Horowitz.
Mr. Armstrong, you are recognized for five minutes. I
caution you that votes have been called, and time has expired,
but there are still 232 have not voted, and you and I are the
two among them.
Mr. Armstrong. I would say you can go first because I'd
rather do this, but thank you. And I appreciate your indulgence
for letting me sit in on this. I would point out a couple
things, one, in the whistleblower statute, there's the right to
protect them to remain anonymous, and there's also the point to
protect them from retaliation. And the reason for that is, in
various different scenarios, such as a criminal investigation
and charges being born out of that, there's ways that are even
civil cases that they would be subpoenaed or have to appear in
court. Also, sometimes they're disclosed before they're ever
protected. So, if we're going to continue to talk about a trial
and a fairness of a trial and calling witnesses, one of the
fundamental issues for a trial, any trial, civil or criminal,
is the right to confront your accuser. Also, we seem to think
that there's this bifurcation of either the whistleblower
doesn't testify or he comes into open hearing in front of the
Senate. As somebody who's done this my whole life, there are
significant safeguards that exist in between those two
spectrums. So, to say that that is a binary choice is patently
false. And this isn't some retaliation within some agency or
somewhere else; we're talking about the impeachment of a duly
elected President.
But, Mr. Horowitz, I've read your reports, and I want to
take you back to June 2018 when the Clinton email server
investigation report came out, and in that report, FBI
officials involved sent messages on their FBI devices that
created the appearance of political bias, and this was Strzok
and Page, correct?
Mr. Horowitz. Among others.
Mr. Armstrong. And you did not have confidence that
Strzok's decisions at the end of the 2016 Presidential campaign
to prioritize Trump/Russia over the new Clinton emails was free
from bias and that he and other FBI employees brought discredit
to themselves and hurt the FBI's reputation?
Mr. Horowitz. That was our finding.
Mr. Armstrong. And you also sharply criticized Director
Comey for his public statements about the Clinton email case
when he wouldn't recommend charges and then, in October 2016,
he told Congress new emails were found, right?
Mr. Horowitz. That's correct.
Mr. Armstrong. And he usurped the authority of the Attorney
General, chose to deviate from established procedures, engaged
in his own ad hoc decisionmaking, and you concluded that
following established procedures are most important when the
stakes are the highest, correct?
Mr. Horowitz. That's correct.
Mr. Armstrong. But yet the final report said this report
did not find any evidence of political bias or improper
consideration actually impacting the investigations?
Mr. Horowitz. We found that the decisions that were made by
the prosecutors not to prosecute and some of the other
decisions we looked at were not impacted by bias.
Mr. Armstrong. And in your newest report, you said the
Justice Department failed to interview key figures or vet
critical information and sources in the Steele dossier. They
wouldn't interview campaign officials because they feared that
they were compromised, but at the same time, CIA Director
Brennan had told the Russians directly. So, the Russians knew
about the investigation, but the Trump campaign didn't,
correct?
Mr. Horowitz. Frankly, I don't know what Mr. Brennan has
said he spoke to the Russians about.
Mr. Armstrong. And the CIA told the FBI that Carter Page
was working for them?
Mr. Horowitz. I'm not sure.
Mr. Armstrong. But the FBI never disclosed that to the FISA
court?
Mr. Horowitz. I'm sorry. Could you ask that----
Mr. Armstrong. The FBI never closed that Carter Page was
working for the CIA to the FISA court?
Mr. Horowitz. I can't talk about anything other than what's
in my report at this point because it would--anything else
would be classified.
Mr. Armstrong. Did the DOJ determine that there was no
probable cause for a FISA warrant on Page?
Mr. Horowitz. The DOJ recently on the day we released our
report sent a letter to the FISA court saying that, at least as
with regard to the final two renewal applications, they
concluded there was insufficient evidence to support the
probable cause.
Mr. Armstrong. Was there an intervention from the highest
levels of the FBI ordering agents to look at the Steele
dossier?
Mr. Horowitz. When the dossier came in, the discussions
subsequent to that in advance of the FISA went all the way up
to the leadership of the FBI, and they were aware of the fact
of the Steele reporting and its decision to rely on it.
Mr. Armstrong. And that was actually Andy McCabe, right?
Correct?
Mr. Horowitz. Mr. McCabe was involved in those discussions,
and as we lay out in connection with the discussions with the
intelligence community assessment, both Mr. McCabe and Mr.
Comey had discussions with their counterparts about including
the Steele reporting in the ICA.
Mr. Armstrong. And the FBI affirmed that Steele was viewed
as a reliable witness even though they knew in previous
instances he had not been reliable, right?
Mr. Horowitz. The FBI laid out in their application why
they found him to be reliable, but did not go to the handling
agent to look at that statement, which the handling agent told
us was not fully accurate.
Mr. Armstrong. So, what they knew and what was put in the
FISA warrant were two different things, and in order to keep
the investigation into President Trump's campaign going, the
FBI lied and omitted key information from the FISA court.
And, with that, I yield back.
Mr. Connolly. I thank the gentleman for his assertion. It
is now the chairman's time to ask questions, and I'm going to
deal with you, Mr. Rosenzweig--I know--because you look bored.
Mr. Rosenzweig. It's not bored, Your Honor.
Mr. Connolly. It's only fair. Somebody said, well, the
whistleblower has a bias. Let me ask you this question, if
someone's biased, does it mean that what they say is untrue?
Mr. Rosenzweig. No.
Mr. Connolly. No. So, Ms. Hempowicz saying, ``Frankly,
that's interesting but irrelevant,'' is correct in the context
of a whistleblower's veracity? We got to go fast.
Mr. Rosenzweig. Like Mr. Armstrong, I've been prosecuting
cases all my life. The question is not bias or motive of the
witness; it's whether or not what they say is corroborated by
other evidence.
Mr. Connolly. Thank you.
Mr. Armstrong. I did defense.
Mr. Rosenzweig. What?
Mr. Armstrong. Sorry. I did defense.
Mr. Rosenzweig. Oh, sorry. I do that now.
Mr. Connolly. So, here's another one. It wasn't firsthand
knowledge. So, if we required all whistleblowers to have
firsthand knowledge, I dare say there wouldn't be many
whistleblowers left.
Mr. Rosenzweig. We'd have very few.
Mr. Connolly. Very few. Is there something in law or even
standard practice that requires a whistleblower who comes
forward to only produce firsthand knowledge or we dismiss them?
Mr. Rosenzweig. No. In fact, in most instances, they rely
on secondhand knowledge, as does every human being in their
everyday life.
Mr. Connolly. So, all of a sudden, we have a new standard
that crops up because we don't like the content of what the
whistleblower has to say about the President of the United
States; he or she didn't have firsthand knowledge. And that's a
new standard that would jeopardize whistleblowing in the
Federal Government, period. Would that be a fair thing to say,
Mr. Rosenzweig?
Mr. Rosenzweig. I would be very concerned if we threw the
baby out with the bathwater and wound up, after the current
controversy, in a situation where there were fewer
whistleblowers who were disincentivized from coming forward.
Mr. Connolly. By the way, I think Mr. Colapinto talked
about nobody likes a rat, which is kind of an unfortunate turn
of phrase, but the fact of the matter is, often whistleblowers
might come in different packages, sizes, designs, and
characters, not all of which are appealing. That doesn't--that
doesn't--mean their testimony is, in fact, invalid, however,
unpopular or unappealing they may be as a personality.
Mr. Rosenzweig. In criminal law, we call them confidential
informants. In intelligence, we call them sources. In
whistleblower law, we call them rats.
Mr. Connolly. I think final for me--no, I have one more.
Motive matters, Mr. Jordan said. Motive matters meaning if I
don't like the motive, the testimony of the whistleblower in
question is discounted, is invalidated. Look, I may have the
darkest, meanest motive in the world, it doesn't per se
discredit my testimony. Is that correct?
Mr. Rosenzweig. It's correct. It means we should look at it
and carefully and determine whether it's true.
Mr. Connolly. And whistleblowers are not necessarily
witnesses at a trial. They're sources of information upon which
we act. Is that fair, Mr. Horowitz?
Mr. Horowitz. That's correct.
Mr. Connolly. So, when somebody says the President, for
example, is entitled to this notion that I get to face my
accuser, well, it's not quite the right analogy. We're not in
that situation. The whistleblower is a source upon which others
may act to determine veracity of questions. Is that correct?
Mr. Horowitz. When you're dealing with that kind of
information, whether you're a prosecutor, an IG, or whomever,
you're trying to corroborate and go from there. It doesn't
necessarily mean that the whistleblower becomes a witness.
Mr. Connolly. Right. We have to go vote. I rest my case.
There's been nothing but red herrings about the whistleblower,
and what bothers me--I'll end on this note--is the threat to
disclose the identity of the whistleblower. Let me tell you, if
that happens, because of who the whistleblower was talking
about, we have jeopardized the entire protection of every
whistleblower going forward, and I find that unbelievable
hypocrisy when this Congress and previous Congress' on a
bipartisan basis have spent years talking sanctimoniously about
protecting whistleblowers. Well, it's the hard cases that
require the protection, not the easy ones.
I thank you all so much for coming today, and we have some
items, without objection, to enter into the record.