Whistleblower Cheat Sheet: Trump Faces A New Wave

By Anne Cullen
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Law360 (October 22, 2020, 9:26 PM EDT) -- As President Donald Trump's chaotic first term winds down, his administration has faced a fresh surge of complaints from once high-ranking federal officials claiming they were sidelined as part of a White House-backed campaign to silence whistleblowers and clear out partisan adversaries.

Lt. Col. Alexander Vindman, left, walks with his twin brother, Lt. Col. Yevgeny Vindman, on Nov. 19, 2019, after testifying before Congress during a public impeachment hearing. (AP Photo/Julio Cortez, File) 

While Trump and his allies have been repeatedly accused of making politically motivated and retaliatory personnel decisions since he took office, at least 10 senior public officials have leveled a slew of new whistleblower complaints against the administration since August.

Among the whistleblowers who have recently stepped up to the plate are former top intelligence official Brian Murphy, former White House ethics attorney Lt. Col. Yevgeny Vindman — the twin of key impeachment witness Lt. Col. Alexander Vindman — and U.S. Department of Labor regional solicitor Janet Herold.

Former federal vaccine chief Rick Bright also tacked on fresh allegations to his May whistleblower complaint, accusing top health officials of blocking him from doing any meaningful work since he was stripped of his leadership role for sounding the alarm about Trump's COVID-19 response.

The latest swell of federal whistleblower complaints speaks to the level of misconduct going on behind closed doors, said civil rights lawyer Debra Katz, co-founder of whistleblower firm Katz Marshall & Banks and counsel for whistleblowers Bright and Herold.

"There's been a significant uptick because the actions of the administration are getting more extreme," Katz said.

Prominent whistleblower attorney Mark Zaid, who represents the government official who blew the whistle on Trump's attempt to pressure Ukraine's government to provide dirt on his political rival, as well as the bulk of the new accusers, said the latest complaints reflect just how high up the ladder the offenses go.

"There's always political appointees that are alleged to be politicizing intelligence," he said, but this administration has been "far more in your face" and "it's been done at the highest levels, it's been the president and Cabinet officers."

Experts are eyeing how these cases play out, as the outcomes will stretch far beyond the Trump administration, according to John Tye, a former Obama administration official who blew the whistle on intelligence surveillance and has since founded the nonprofit law firm Whistleblower Aid to support government workers flagging concerns.

"I think that these cases are a test of whether this system can actually work," Tye told Law360. 

Vindman Twin Claims Ukraine Concerns Got Him Canned

Lt. Col. Yevgeny Vindman fired off a whistleblower reprisal complaint with the Pentagon's Office of Inspector General on Aug. 18, claiming he was removed from his White House post as punishment for raising concerns about Trump's infamous July 2019 call with Ukrainian president Volodymyr Zelensky.

Army Lt. Col. Yevgeny Vindman sits behind his twin brother, Lt. Col. Alexander Vindman, as he testifies before the House during a public impeachment hearing late last year. (AP Photo/Alex Brandon)

Before an unidentified CIA whistleblower filed the August 2019 complaint that triggered the impeachment inquiry into Trump's dealings with Ukraine, Yevgeny Vindman said he and his twin brother, Lt. Col. Alexander S. Vindman, had spoken with the deputy White House counsel about their concerns.

At the time, Yevgeny Vindman served as an ethics lawyer on the White House's National Security Council and Alexander Vindman was the council's European affairs expert. On Feb. 7, two days after the Republican-led U.S. Senate acquitted Trump of charges that he abused his power by offering Ukraine aid in exchange for a political favor, Yevgeny and Alexander Vindman were escorted out of the White House by security.

Alexander Vindman garnered national attention when he testified before the U.S. House of Representatives during the impeachment inquiry. He has not filed a formal whistleblower complaint, but he said in a public statement published by The Washington Post in August that he was driven out of government and military service because of "a campaign of bullying, intimidation and retaliation by President Trump and his allies."

Zaid, Yevgeny Vindman's attorney, confirmed that the U.S. Department of Defense's OIG has since kicked off a probe into his client's allegations, and Zaid said he has "no doubt that this complaint is being taken very seriously."

The well-known whistleblower lawyer said he's not holding his breath, adding these investigations can take up to four years to complete based on the OIG's resources and the level of cooperation from witnesses. In this case, where Yevgeny Vindman's complaint names top White House personnel, Zaid said the OIG is likely to run into some trouble.

"It's an awkward situation to compel the White House or even obtain voluntary cooperation from the White House in these types of cases," Zaid said, adding later that "the amount of time will really depend on the level of cooperation, if any, from the White House."

The OIG can't force the White House to play ball, but Zaid said the office can make a determination on whether Yevgeny Vindman is telling the truth. Yevgeny Vindman has asked the Pentagon's inspector general to reassign him to his position within the White House.

The investigation will almost certainly continue past November and Zaid said the outcome of the election could have a major effect on his client's case.

"If Vice President Biden wins the election, I would hope and expect to see White House intervention in a Biden administration to right any wrongs committed by the Trump administration."

He believes under former Vice President Joe Biden, the federal government would "embrace the activities of individuals like Lt. Col. [Yevgeny] Vindman and his brother as lawful whistleblowers who have patriotically served their country."

But for now, Zaid said they're just "waiting to hear back."

The White House, the Pentagon, and the U.S. Army did not respond to requests for comment on Yevgeny Vindman's allegations.

Ousted Vaccine Chief Steps Down After Being Sidelined

Rick Bright, the former head of the U.S. Biomedical Advanced Research and Development Authority who says he was pulled off the government's pandemic response after resisting unproven treatments touted by Trump, left the government altogether on Oct. 6, insisting the administration continues to "censor and sideline its scientists."

Rick Bright, the federal government's former top vaccine chief, speaks to a House committee on May 14 about protecting scientific integrity amid the COVID-19 pandemic. (Photo by Michael Brochstein/Sipa USA)

Bright's attorney said the doctor had involuntarily resigned from his position at the National Institutes of Health — where he was transferred after being removed as BARDA director — because senior health officials refused to give him any meaningful work.

"The federal government is paying Dr. Bright, one of the nation's leading experts in pandemic preparedness and response, and an internationally recognized expert in vaccine and diagnostic development, to sit on his hands during a global pandemic that has, to date, killed 1 million people globally and over 210,000 people within the United States," said Katz, the civil rights lawyer representing Bright, in the announcement.

Bright also added a fresh set of claims into his ongoing whistleblower case, alleging top federal health officials stymied his efforts to implement a plan that could better identify people infected with the coronavirus.

In his original complaint, filed with the U.S. Office of Special Counsel in May, Bright says he was kicked out of BARDA for objecting to the Trump administration's "reckless and dangerous" efforts to promote drugs like chloroquine and hydroxychloroquine as effective COVID-19 treatments.

Shortly after he objected to an April directive to "flood" New York and New Jersey — then the U.S. epicenter of the pandemic — with treatment courses of the malaria drugs and shared the plan with a journalist, Bright said he was moved to a limited NIH role.

"He was transferred right on the heels of that," Katz said. "It was clearly retaliatory."

Just two days after the first allegations were filed, the OSC found there were "reasonable grounds to believe" that the Trump administration retaliated against Bright and called for the doctor to be reinstated for 45 days while it investigated, according to a June addendum to Bright's complaint.

According to that addendum, however, U.S. Department of Health and Human Services Secretary Alex Azar ignored the recommendation.

While the next stop for the matter would usually be the U.S. Merit Systems Protection Board, the independent agency responsible for handling disputes over partisan personnel practices has been toothless since Trump took office.

The term of the board's last member expired early last year and the Senate hasn't confirmed any new nominees. Katz said those empty seats mean complaints sit idle and OSC recommendations go nowhere.

"Without having a functioning Merit Systems Protection Board, there's no way to enforce those kinds of requirements," Katz said. "Even though there was a determination that there was a likelihood that his removal was in violation of the Whistleblower Protection Act, there was just no way to enforce it."

For now, Katz said the OSC will continue to look into Bright's allegations, and she anticipates they'll side with her client.

"We expect that they're going to reach the right conclusion here because the evidence was so strong," she said.

Representatives for HHS did not respond to a request for comment on Bright's claims.

Intelligence Official Says DHS Head Demanded Data to Back Trump Agenda

Brian Murphy, the former head of intelligence for the U.S. Department of Homeland Security, has accused acting DHS Secretary Chad Wolf and other agency leaders of pressing him to spin intelligence data on immigration, election security and domestic terrorism to support the president's conservative talking points, and ultimately demoting Murphy when he refused.

Former head of the DHS intelligence division, Brian Murphy, testifying before the House in May 2019 on domestic terrorism. (C-Span)

Murphy's complaint, which he filed with the agency's OIG on Sept. 8, says Wolf directed him to withhold an intelligence bulletin on Russian efforts to interfere with the upcoming election because they "made the president look bad." According to Murphy, Wolf directed him to refocus his reports on China and Iran.

The DHS confirmed in July it had withheld the report, which centered on Russian efforts to denigrate Biden's mental health.

Zaid, Murphy's attorney, said they've seen the politicization of intelligence data in every administration, but the last four years have been different.

"In this administration, we've seen far more than we've ever seen before and at levels we've never seen before," he said.

Murphy also alleges that former DHS head Kirstjen Nielsen lied to Congress twice about the number of suspected terrorists entering the U.S. from the southwest border, clocking the figure at nearly 4,000, when data showed no more than three individuals fell into this category.

After repeatedly making clear that he would only report accurate intelligence information, Murphy said Wolf demoted him to an assistant position in August.

Murphy's demotion was widely reported as Wolf's response to media reports circulating at the time that the DHS intelligence division was illicitly gathering data on journalists covering police brutality protests. Murphy, however, says in his complaint that Wolf "knew there was no merit to the press allegations" and told Murphy the reassignment would be "politically good" for Wolf, who was seeking official nomination as the head of the department.

DHS' intelligence office "never knowingly or deliberately collected information on journalists," Murphy added.

Zaid noted that at least as far as he can recall, his client is one of the highest-ranking whistleblowers to publicly come forward, and the outcome of this case will make waves beyond the Trump administration.

"How his case is handled can shed a light on the system as well as influence others to come forward," he said.

Right now, Zaid said the OIG investigation is in the early stages, as he and the rest of Murphy's legal team are waiting to get security clearances for the case to move ahead. Murphy's allegations include a swath of classified information, largely surrounding Russian election interference in the U.S.

Acting Secretary of Homeland Security Chad Wolf defended his authority to lead the department before the Senate's homeland security panel on Sep. 23. (Shawn Thew/Pool via AP)

DHS faces other allegations of misconduct. A government watchdog published a report Aug. 14 that found Wolf and his second-in-command, Ken Cuccinelli, had been illegally appointed to their leadership roles based on a botched succession process following Nielsen's resignation last year, and are ineligible to serve.

And a week after Murphy lodged his complaint, registered nurse Dawn Wooten fired off her own, claiming immigrants held at a Georgia immigration detention center faced appalling conditions, jarring medical neglect, and many women held there were given hysterectomies — a surgery in which the uterus is removed — without their consent.

Wolf batted back the accusations in a Senate hearing last month, slamming the GAO's findings as "faulty" and "inaccurate," calling Murphy's claims "patently false" and "a fabrication," and telling lawmakers that the facts gathered so far in an investigation into the Georgia facility "do not back up [Wooten's] allegations."

The DHS did not respond to requests for comment.

DOL Lawyer Says Scalia Tried to Cut Shady Pay Bias Deal

The DOL's top attorney on the West Coast has recently accused Labor Secretary Eugene Scalia of trying to kick her off a high-profile pay discrimination case against Oracle America Inc. and transfer her halfway across the country for flagging concerns that Scalia was improperly attempting to meddle in the lawsuit.

Labor Secretary Eugene Scalia, here seen listening to Trump speak with restaurant industry executives during a meeting in May, has been accused of abusing his authority in a pay bias case before the agency. (AP Photo/Evan Vucci)

Janet Herold, the DOL's regional solicitor based in Los Angeles, filed a complaint with the Office of Special Counsel on Aug. 7, alleging she was punished for sounding the alarm about "political cronyism" within the department, according to Katz, one of Herold's attorneys.

Katz said the complaint will remain under wraps because of attorney confidentiality issues but explained that Herold alleges Scalia repeatedly tried to interfere in the $400 million discrimination case to let the Silicon Valley-based technology giant off with a settlement worth "pennies on the dollar."

Herold, an Obama-era career appointee, had been the lead attorney on the litigation accusing Oracle of systematically underpaying women, Black and Asian workers since the DOL filed it in early 2017.

However, she says after she pushed back on Scalia's attempts to interfere, he reassigned her to an administrative workplace safety-focused position in Chicago effective Oct. 27.

After Herold filed her complaint, the OSC asked Scalia to pause the reassignment for 90 days to give investigators time to look into the matter, according to a letter sent to the agency by Rep. Rosa DeLauro, D-Conn., who chairs a House appropriations subcommittee with jurisdiction over the DOL.

"OSC only makes such a request if it has determined that there were 'reasonable grounds' to believe that the reassignment was retaliatory or discriminatory," DeLauro said in her September letter.

The agency, however, has only recently agreed to a 30-day reprieve, Bloomberg reported this month. During that time, Herold must decide whether to accept the transfer or quit.

Katz said they "feel confident" the OSC is "going to investigate this fully and get to the right place."

A DOL spokesperson denied Herold's allegations, claiming that Scalia "has never had any communications with Oracle or its attorneys concerning the department's litigation against the company, or any settlement discussions."

The spokesperson added that "any suggestion that departmental leadership exhibited improper favoritism toward Oracle is absurd."

As for Herold, the agency said her reassignment was by the book.

"Ms. Herold is being reassigned for legitimate reasons that are in the best interest of the department," the spokesperson said. "This matter does not involve retaliation of any kind, including for purported whistleblowing."

A DOL administrative law judge dismissed the Oracle lawsuit in September, and the agency is mulling a possible appeal.

Trump's Media Pick Accused of Partisan Mismanagement

The conservative filmmaker Trump tapped to lead the U.S. Agency for Global Media is facing an avalanche of allegations that he's abusing his power and mismanaging the agency, which operates state-run outlets like Voice of America and Radio Free Europe, to prop up right-wing policy goals.

USAGM head Michael Pack speaking at a Senate subcommittee nomination hearing in September 2019. (Senate Committee on Foreign Relations)

Michael Pack has supplanted leaders of the networks he oversees with Trump loyalists, instituted a spending freeze that jeopardized the safety of journalists in high-risk countries, refused to renew staffers' expiring visas and fired journalists who didn't portray the president in a good light, according to at least two federal lawsuits and a whistleblower complaint recently filed against him and the agency. Pack, a close ally of Trump's former campaign adviser Steve Bannon, was confirmed to head up the agency in June.

Six senior USAGM officials, including Chief Strategy Officer Shawn Powers, Chief Financial Officer Grant Turner and general counsel David Kligerman, lodged a whistleblower complaint Sept. 29 claiming they were suspended on the same day in August after they had raised complaints that Pack's actions were wreaking havoc on the agency.

The bulk of the group then lodged a lawsuit in D.C. federal court in early October and followed up with an injunction bid last week, hoping to get a court order that would bar Pack from doing any more damage.

"This case is about the insidious politicization of journalism that threatens not only our nation's publicly funded, independent media but also our nation's reputation for modeling and defending a free press around the world," the Oct. 8 lawsuit read.

"Before he was in the position, Pack had made it clear he was going to clean house" of people working for the agency that he saw as "Obama holdovers," said Zaid, who represents the USAGM whistleblowers in the complaint they filed with the government. Last year, Pack indicated to Kligerman that he didn't think USAGM leadership was sufficiently loyal to the White House, according to the complaint.

Pack said in a statement that the lawsuit "is totally without merit."

"Every decision and action made by me and implemented by my senior leadership has been correct and lawful," Pack said. "USAGM leadership will not allow any effort to distract attention away from the real issues of an agency that has been poorly run and mismanaged for years, to the detriment of national security and the American people and the agency's ability to perform its important mission of promulgating American ideals such as democracy and freedom around the world."

Pack is also under fire from the Open Technology Fund, an independent but taxpayer-funded internet freedom nonprofit that has lodged two lawsuits against the agency alleging Pack tried to supplant its leadership with Trump allies and then withheld millions in funding after that campaign fell through.

In addition to firing all the heads of the networks that USAGM runs, including Radio Free Europe, Radio Free Asia, Middle East Broadcasting Networks and Office of Cuba Broadcasting, Pack also tried to oust OTF's board and replace them with government appointees.

The D.C. Circuit blocked that plan in July, finding it possible that Pack doesn't have the authority to meddle with the leadership of the organization. The OTF filed another broadside against the agency at the U.S. Court of Federal Claims in August alleging Pack is withholding more than $19 million in funding.

In the whistleblowers' federal lawsuit, they allege Pack's newly installed leadership team is "woefully unqualified" and have shown no respect for independent journalism.

For Zaid, Pack's actions are just one more example of Trump stacking federal agencies with partisan allies instead of qualified professionals.

"There are these hyper-partisan, very inexperienced individuals coming in and rendering judgments and decisions that would normally be exercised by career professionals," Zaid said.

EPA Whistleblower Says He's on Government Blacklist

The former top official who said he was thrown out of the U.S. Environmental Protection Agency after voicing ethics concerns about then-administrator Scott Pruitt claims in a new lawsuit that he's still being blackballed by the Trump administration.

A former EPA official who said he was thrown out of the agency in 2018 after voicing ethics concerns about then-Administrator Scott Pruitt, pictured, claims he's still being blackballed by the Trump administration. (AP Photo/Susan Walsh)

Kevin Chmielewski, a former Trump campaign aide who previously served as the EPA's deputy chief of staff for operations, said in his Oct. 20 complaint that he was turned away from a U.S. Energy Department position this year — even though interviewers called him a "shoe-in" — because he had blown the whistle on misconduct within the Trump administration.

In 2018, Chmielewski was among the officials who claimed Pruitt had violated a long string of ethical standards by cozying up to lobbyists, maintaining a secret calendar and using staff for personal errands.

The revelations eventually led to Pruitt's resignation, but not before Chmielewski said Pruitt fired him for blowing the whistle. Now Chmielewski says he still can't get a job with the government.

According to his complaint, White House personnel reached out to him in March about a potential senior position in the DOE, but after he interviewed and sent in the requisite paperwork — allegedly including a questionnaire about loyalty to Trump — those aides said his application was blocked because of the EPA disclosures.

White House personnel told Chmielewski "that every time they tried to pass his paperwork through, it was stopped by numerous people because of what happened at the EPA with Scott Pruitt due to plaintiff's disclosures," he said.

Before Pruitt stepped down, Chmielewski told congressional Democrats that he had emails, documents and other records to show Pruitt used security concerns to fly first class and purchase bulletproof vests, weapons, biometric locks and at least one new SUV — rather than getting one from the General Services Administration. Pruitt also installed a $43,000 soundproof phone booth and agreed to a $30,000 contract with private Italian security personnel.

Chmielewski also spoke to national media outlets about his concerns and claimed Pruitt had lied to Congress.

In his new suit, Chmielewski says the EPA and the DOE "violated his free speech and due process rights by, respectively, removing him and refusing to hire him."

An EPA spokesperson told Law360 the agency cannot comment on pending litigation. Chmielewski's attorney, John A. Kolar of the Government Accountability Project, did not respond to requests for comment.

--Additional reporting by Dave Simpson, Hailey Konnath, Kevin Stawicki, Vin Gurrieri, Khorri Atkinson, Mike LaSusa, Braden Campbell, Julia Arciga, Morgan Conley, Nadia Dreid, Suzanne Monyak, Alyssa Aquino, Christopher Cole and Jennifer Doherty. Editing by Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.

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