In a memo dated January 29, 2018, Attorney General Jeff Sessions instructed Department of Justice (DOJ) heads to not communicate with “senators, representatives, congressional committees, or congressional staff” without first consulting with the DOJ Office of Legislative Affairs (OLA).
Senator Chuck Grassley (R-IA), a long-time advocate for whistleblower rights, has expressed his concern regarding the legality of the Attorney Sessions’ memo. In his response letter, Grassley writes that the memo “does not appear to comply with existing law.” In particular, it infringes on the rights of DOJ employees to “make protected disclosures directly to Congress.”
This memo follows comments Sessions made in August 2017, in which he threatened to prosecute anyone who released sensitive government information. In a Justice Department briefing, Sessions stated that the “culture of leaking must stop.”
The pre-approval requirement laid out in the DOJ policy memo encompasses communications “pertaining to policy, legislation, political appointments, nominations, intergovernmental and public liaison relations, cases and investigations, and administrative matters.” The policy also requires DOJ “attorneys, officers, boards, divisions, and components” to immediately direct all “congressional inquiries and correspondence from” Congress to the OLA.
On February 5, Senator Charles Grassley, a long-time advocate for whistleblower rights, responded to the troubling DOJ policy guidance. Senator Grassley wrote that the memo “does not appear to comply with existing law and request[ed] that [Attorney General Sessions] revise it accordingly.” Although recognizing that “the Department … must speak with one voice on official matters,” Senator Grassley pointed out that the memo “fail[ed] to address the rights of employees to make protected disclosures directly to Congress.”
As noted by Senator Grassley, the memo “could leave the impression that the [DOJ] is attempting to prevent lawful disclosures and discourage employees from exercising their statutory and constitutional rights to directly communicate with Congress.”
Nonetheless, the rights of federal employees “to petition Congress … or to furnish information to either House of Congress … may not be interfered with or denied.” The laws governing the rights of federal employees clearly state that non-disclosure agreements or policies must contain a clear exception for lawful whistleblowing.
The DOJ memo is a direct attack on federal employee whistleblower rights. As the DOJ continues this troubling trend of hostility toward whistleblowers, it is important to remember that federal employee whistleblowers are key actors in rooting out government fraud and corruption. Suppressing whistleblowers will only serve to empower fraudsters.
Important links:
- Grassley Letter (Feb. 5, 2018), with DOJ Memo (Jan. 29, 2018)
- 5 U.S.C. § 2302(b)(13)
- 5 U.S.C. § 7211 (2012)
- Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 744, 131 Stat. 135, 389 (2017)
- “This culture of leaking must stop,” Sessions says, threatening media subpoenas, CBS News (Aug. 4, 2017)
- Leaking v. Whistleblowing
- Federal Employees: Defend Your Jobs!
