Grassley Warns AG Retaliation Against FBI Whistleblowers Talking to Congress Is Illegal

Sen. Charles Grassley (R-Iowa) speaks before the Senate Judiciary Committee on Capitol Hill on Oct. 14, 2020. (Susan Walsh/AP Photo)

Sen. Charles Grassley (R-Iowa) told Attorney General Merrick Garland in a Sept. 1 letter that retaliation by Department of Justice (DOJ) officials against FBI whistleblowers or any other federal employee talking to Congress is a violation of numerous federal laws.

“As you are aware, the department and FBI have a reputation for retaliating against whistleblowers that provide information to Congress. Accordingly, I’d like to remind the department that, as a basic matter of law, all employees of the U.S. Government have a right to petition Congress or furnish information to Congress,” Grassley wrote in the letter.

He reminded Garland that 5 U.S.C. Section 7211 requires that “the right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied,” according to the letter.

This fact wasn’t included by Garland in his Aug. 30 internal memorandum to all DOJ employees, which states that all communication to Congress must receive prior approval through the department’s Office of Legislative Affairs (OLA), Grassley noted. The OLA is typically run by a presidential political appointee.

Garland acknowledged in his memo that whistleblowers are protected, but failed to describe how deeply such protections are embedded in federal law. Grassley said he’s worried that the attorney general was seeking to prevent any more FBI or DOJ employees from talking to members of Congress.

“Notably, your memo arrived on the heels of those whistleblower disclosures to me from department and FBI employees about the blatant politicization of the Trump and Hunter Biden investigations. Even with your whistleblower caveats, and due to the timing of your memo, I remain concerned about the chilling effect it may have on whistleblowers who wish to approach Congress with information relating to fraud, waste, abuse, and gross mismanagement,” the letter reads.

“Protections for DOJ employees to report wrongdoing directly to Congress don’t end there. For example, 5 U.S.C. [Section] 2302–2303 also protects DOJ employees from reprisal for making disclosures directly to Congress.”

Grassley also noted that “DOJ’s own policy manual regarding communications with Congress, which you cited to in your memo, also recognizes the unequivocal right of employees to petition Congress directly, stating, ‘nothing in this policy is intended to conflict with or limit whistleblower protection such as those provided in 5 U.S.C. [Sections] 2302–2303 and applicable regulations.’

“Although your memo mentions this line, it provides no further context or guidance, leading many who read it to believe that whistleblower protections will not be available if they speak directly to Congress,” the letter reads.

He also reminded the attorney general that the Consolidated Appropriations Act (CAA) of 2022 includes provisions guaranteeing the right of federal employees to become whistleblowers by providing information that wouldn’t otherwise be given to Congress by executive branch officials worried about negative media coverage.

According to Grassley, Section 713 of the CAA stipulates that no tax dollars “shall be available for the payment of the salary of any officer or employee of the federal government, who—(1) prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer or employee of the federal government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress in connection with any matter pertaining to the employment of such other officer or employee or pertaining to the department or agency of such other officer or employee in any way, irrespective of whether such communication or contact is at the initiative of such other officer or employee or in response to the request or inquiry of such Member, committee, or subcommittee.”

Grassley concluded his letter to Garland by noting that the recently enacted Senate Resolution 723 designating “National Whistleblowers Appreciation Day” had 11 Democrats among its 21 co-sponsors. The resolution was passed unanimously by the Senate.

The resolution began by noting that the Continental Congress in 1777, during the Revolutionary War, supported 10 seamen and marines in the infant American Navy who reported on waste and fraud in the government.

The following year, “in demonstration of their full support for whistleblowers, the members of the Continental Congress unanimously passed the first whistleblower legislation in the United States that read:

“‘Resolved, That it is the duty of all persons in the service of the United States, as well as all other the inhabitants thereof, to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.’'’

The Iowa Republican has a long record of defending whistleblowers in the federal bureaucracy who independently provide important information to congressional investigators in the Senate and the House during the administrations of presidents representing both political parties.

“The whistleblower programs I’ve helped create have seen roaring successes, with the False Claims Act saving taxpayers $70 billion and the SEC whistleblower program saving over $4.8 billion,” Grassley said in a June 22 statement.