Government Law Enforcement Agents and Employees Have Whistleblower Protection

In response to the Trump administration’s “zero tolerance” immigration policies, as well as his personal comments on the Department of Justice, many have raised questions about the legal rights and protections afforded to Government law enforcement agents and employees in agencies like the FBI, DHS, ICE and with U.S. Customs and Border Protection.

Agents and employees who want to report possible misconduct, or even enquire about the questionable legality of conduct they learned about through their work, have protections. Unfortunately, given the current climate, there is uncertainty about the confidentiality and reliability of internal government procedures through which the government has traditionally promised to police itself.

Just last month Senator Chuck Grassley (R-Iowa) took the floor of the U.S. Senate to inform “FBI Agents and all federal law enforcement” that they are all “protected for providing information to Congress” even without a subpoena. Part of Sen. Grassley’s comments were surely in response to a memo written by Attorney General Jeff Sessions that seems to instruct at least some justice department employees not to communicate with Congress “without advance coordination and consultation” with the DOJ Office of Legislative Affairs. Grassley and others believed that memo did not accurately convey, or conform to, the law. The law was designed to provide protection to any federal law enforcement officer who has information to provide, or questions about their rights.

The 2016 FBI Whistleblower Protection Enhancement Act states at 5 U.S.C. § 7211 states 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."

Of course, there are many serious concerns that may not be a matter for Congress, or may not otherwise fall under this statute. There are also reasons why going to the media is an uncertain or even undesirable option given that protections consistent with those afforded by the Attorney-Client privilege are not guaranteed.

Also, with expected increases in hiring, especially with agencies like U.S. Customs and Border Protection, and particularly with immigration judges and courts, not everyone knows what their rights are, or how to best come forward, whether publically or anonymously.

At Nathans & Biddle LLP, our Baltimore criminal defense attorneys are litigators. We have built a reputation for helping many of our clients avoid criminal charges and for winning their cases at trial and in appellate courts. Over our 85 years of combined trial experience, our attorneys have received numerous awards and honors, including U.S. News & World Report's highest Tier I rating in Criminal Defense and inclusion in the Best Lawyers in America list for White Collar and Non-White Collar Criminal Defense.

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