Whistleblower or Criminal? The Fine Line Defining Government Accountability (Opinion)

Maybe it’s the unique perspective I hold that makes me say this, but a Federal employee or contractor should never need to disclose classified information to the news media. Why? Because as soon as they do, they’re no longer a whistleblower. The distinction between a government whistleblower and a criminal can hinge on a single crucial factor: to whom the information is disclosed. This principle is at the heart of understanding how alleged wrongdoing within classified systems is handled, potentially transforming a citizen’s attempt to expose illegality into a federal offense. The process for reporting misconduct, often referred to as utilizing “proper channels,” determines whether an individual is protected or subject to prosecution, particularly when classified information is involved.

If through following proper channels the concern still isn’t resolved, then there’s a much deeper problem indicating that the whole system has collapsed and can no longer be trusted. And despite what partisan talking heads will tell you, I still have hope that we’re not there yet.

When an individual within a government agency or a contractor believes they have uncovered illegal activities, their path for reporting these findings significantly impacts the legal ramifications. Reporting misconduct to designated government officials, such as an Inspector General or members of Congress through established protocols, is considered a “protected disclosure.” This avenue generally keeps the individual within the existing security clearance framework and can shield them from punitive action. However, if that same information, particularly if it is classified, is instead shared with the press or the public, it is often viewed as an unauthorized disclosure or a “leak.” This action can lead to serious criminal charges, frequently brought under statutes like the Espionage Act or laws pertaining to the theft of government property.

In a recent instance involving a contractor identified as Perez-Lugones, the government’s allegations suggest that classified documents were removed and potentially shared with a journalist. This alleged circumvention of established reporting procedures had significant consequences. By reportedly going outside the “proper channels,” the contractor is said to have forfeited any protections afforded by whistleblower legislation, including the Whistleblower Protection Act and specific Intelligence Community protections, which do not extend to disclosures made to the media. Furthermore, such actions are seen by the government as triggering a criminal investigation, viewed as the unlawful retention or transmission of national defense information.

For individuals who believe they possess evidence of illegal activities, such as potential misconduct related to workforce changes within government operations, utilizing the correct channels is paramount to avoiding legal jeopardy. The typical avenue for reporting is through an agency’s specific Inspector General, such as the Department of Defense Office of the Inspector General. These offices are tasked with investigating waste, fraud, and abuse within their respective agencies and can initiate internal audits or investigations based on reported concerns. Congress itself also serves as a crucial oversight body. However, reporting to Congressional committees, such as the House or Senate Intelligence Committees, requires adherence to specific protocols. Individuals cannot simply transmit classified information directly. Instead, they must contact the committee’s security director to arrange a secure meeting, typically held within a Sensitive Compartmented Information Facility (SCIF), to ensure the information’s confidentiality and legal handling.

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So could someone ever justify leaking classified information to the news media? Only through insurmountable odds, that the entire system from IG to Congress had become so corrupt, that the government cannot address the concerns. And if that were to occur, a person leaking classified information would have only one hope, and that would be jury nullification, in which they could convince a jury of their peers that the information was so severe, the circumstances so urgent, and the government had become so corrupt, that there was no alternative course of action.

Actions taken by law enforcement, such as raids on journalists’ premises, often stem from the government’s perception of the information’s status. Historically, Department of Justice guidelines have made it difficult to seize records from reporters. However, these protections can be circumvented if the government argues that a reporter is in possession of “contraband,” defined as stolen government documents, or if the reporter is considered a co-conspirator in the acquisition of such materials. A recent aggressive stance by the Department of Justice suggests a willingness to pursue search warrants for reporters who are seen as receiving classified documents, potentially bypassing traditional protections afforded to news gathering.

And while the Washington Post might cry foul over one of their reporters’ homes being raided, I personally find it dangerous to accept such documents in the first place. With minimal ability to validate the authenticity of the documents, as well as the potential for criminal charges related to mishandling of classified information, the only way this could ever be justifiable would be if our system has become so corrupt, so lost, that there’s no other way to expose what has been happening.

Jump back a few years and look at the case of Reality Winner in 2017. What if Winner had revealed her findings regarding Russian interference efforts in the 2016 election to the appropriate channels. The House and Senate Intelligence Committees would have been briefed on the Russian hacking attempts in a classified setting. The public likely would not have seen the document immediately, but Congress would have been able to act on it. Now keep in mind, this is after the election already took place, the results certified, and the President sworn into office. Winner’s findings did not in any way change that, and ultimately she sacrificed her freedom to ensure the public saw the evidence immediately, rather than trusting Congress to handle it behind closed doors. Was she right to do so? Given the fact that this information made zero difference in the grand scheme of things, I don’t think she was correct in this action. Would it have taken longer? Absolutely. Would the information have ultimately come to light in time to help influence securing the 2018 midterms? I like to think so. The Inspector General would likely have been legally obligated to notify Congressional Intelligence Committees within 14 days, and Congress would have grilled the NSA on why the evidence of an ongoing cyber attack hadn’t been addressed. The system could have worked, but it required trusting the process. And unfortunately, Winner didn’t give the system a chance to work.

Maybe I’m an eternal optimist, but I still believe there are enough good people in these positions, Inspector General or even Congress, in order to effect critical change when misconduct is observed. It’s clear that the Trump administration has a lot of influence across the government, but at the end of the day I still believe there are enough checks and balances left that even if there were a misconduct issue within the core administration itself, there’s still enough people in government who will do the right thing. And if I’m wrong, then it won’t matter how much you leak to the news media, because that would mean the Republic is already lost. I still believe in our great Republic, and believe there are enough good people to make a difference, the correct way.

And if I’m wrong, this whole opinion article probably won’t matter anyway.

Opinion article by Ken Buckler, all opinions are his own and do not reflect those of our clients or sponsors.

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