TF 36: The Whistleblowers’ Moment
Printable Version
Harry Litman [00:00:07] Welcome back to Talking Feds. Prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. I'm also a whistleblower lawyer and my legal practice, while part time, has been exclusively representing whistleblowers under the False Claims Act, which you may have heard of. It's also known as Lincoln's Law. It was passed in the wake of the Civil War when, in Lincoln's words, unscrupulous contractors would sell the Union Army sugar but it would really be sand, pants that fell apart in the rain, crippled beasts and the like. But in the last 30 years or so it's had a great resurgence and has returned over 60 billion dollars to the federal treasury. We are in the age of the whistleblower officially. In fact, we're in the very day in the week of the whistleblower in the midst of the Year of the Whistleblower. A whistleblower complaint has succeeded where the Mueller report did not in initiating a bona fide crisis in the presidency and bringing the prospect of impeachment to the fore. We are expecting today Wednesday October 2nd a whistleblowing complaint from the State Department. There is a tax whistleblower on the scene and this is all with respect to the Trump administration, there's been an explosion as we're going to hear in whistleblower activity generally in recent years. So who are whistleblowers and what is this burgeoning phenomenon? To discuss we have three superbly qualified experts. First, Eric Havian. He is a partner in the San Francisco office of Constantine Cannon. He has 25 years experience representing whistleblowers under not just the False Claims Act but other statutes. He is, to my mind, the finest whistleblower attorney in the country. He's also a bona fide Fed having served as an Assistant United States Attorney in the Criminal Division of the U.S. Attorney's Office in San Francisco from 1987 through 1994. Eric Havian welcome to Talking Feds.
Eric Havian [00:02:34] Thanks, Harry. Nice to be here.
Harry Litman [00:02:35] And what's been your biggest or most noteworthy case, whistleblower case, and under what statute would you say?
Eric Havian [00:02:45] Probably the most significant one, it's not biggest by dollar volume, but there is a case that we had representing a whistleblower, it seems timely now because it involved national security. A Case involving the company which in this case was TRW, manufacturing a defective fifty dollar component for black spy satellites. They knew it was defective. They knew it had issues when one of the satellites was getting ready to launch. They saw the government who were NRO which was launching it saw some anomalies. They asked the company, "Is anything we're seeing here? Something we need to be worried about? They said, "No, it's fine." Satellite went up. It went blind a little while later. Government has some pretty large damages. The company ended up paying three hundred twenty five million but tellingly the amount of damage was actually much greater than that. But the reason they only paid three hundred twenty five million dollars was because the government was terrified of a case that would go in open court and reveal national security secrets. So, in a way, there was a little bit of extortion going on there.
Harry Litman [00:03:44] We're also joined by Rob Vogel. Rob is also one of the most prominent and experienced whistleblower lawyers in the country. He's a founding partner of Vogel, Slade and Goldstein which he started just five years out of law school. He is also the former Taxpayers Against Fraud whistleblower lawyer of the year. And prior to that he was a trial attorney in the commercial fraud section of the Department of Justice's Civil Division. Welcome, Rob. And what is Taxpayers Against Fraud?
Rob Vogel [00:04:17] Taxpayers Against Fraud is an organization devoted to representing the interests of the community of lawyers and Whistleblowers involved in False Claims Act cases.
Harry Litman [00:04:30] And finally we welcome Tom Mueller to Talking Feds. Tom is neither a whistleblower lawyer nor a Fed. He is, however, one of the worldwide experts on whistleblowers and whistleblower statutes. A former Rhodes Scholar and summa cum laude graduate of Harvard, he is the author of "Crisis of Conscience" whistleblowing in the age of fraud, which was published yesterday by Penguin Random House. Tom, welcome.
Tom Mueller [00:04:59] Thank you, Harry.
Harry Litman [00:05:00] Your previous nonfiction book was entitled provocatively. "Extra Virginity". It was about fraud of a different sort. Can you give us the summary of that in essence?
Tom Mueller [00:05:12] Great olive oil is one of the great foods and the keystone of the Mediterranean diet, but it's very hard to come by because of a range of criminal actors who make a lot of money by selling cheap stuff as extra virgin olive oil. So I learned a lot about the world of food fraud and I think that predisposed me to look into whistleblowing and the much broader range of misconduct that they call out.
Harry Litman [00:05:36] So let's start there and whistleblowers in general. You know, who are they? Eric and Rob you've been representing whistleblowers for more than 50 years together. Tom, you interviewed 200 plus whistleblowers just in broad strokes, what character traits or background do they share, if any? Are there any generalizations you can make about whistleblowers? Who are these people who now everyone is just beginning to hear about?
Tom Mueller [00:06:05] You know, each whistleblower had an arc of experience that they said quite often, "Well, I wouldn't have blown the whistle if I had been ten years younger or if I'd been married and so on." But I did feel like there were certain bedrock characteristics in their whistleblowing that underscored that they needed to not only go away from misconduct but stand up and try to stop it. And one is a certain inflexibility ethical inflexibility that black and white people they quite often say--.
Harry Litman [00:06:31] Rules is rules.
Tom Mueller [00:06:32] "I'm a rules kind of person." Yeah, you know, "I'm a rules girl," as one of one of them said. That that doesn't necessarily mean they're the life of the party. I think being someone who's even a contrarian or at least willing to challenge authority and challenge the loyalty of the group is critical.
Harry Litman [00:06:48] What about that, Eric? I mean, you don't think of them as necessarily being you know the most popular people in the third third grade schoolyard?
Eric Havian [00:06:55] No no. They were the ones who got beat up because they wouldn't budge from their position. But you know, I mean Tom's absolute right. The other thing I would note in terms of a common denominator, Rob I'm sure you've seen this too, it's just a myth that they do it for the money. The money can be important. In fact, the money can be an essential feature. That's not why they do it. They never come to us or virtually never before they've been screaming and yelling and waving their arms inside the company, trying to go within channels and it's only, they only come to us as a last resort. I mean isn't tha--
Harry Litman [00:07:28] And by the way, we should just say that there are some like, we're gonna be talking about the Trump whistleblowing which are under schemes that don't even provide for money. But it is true that most of your work as lawyers is under statutes that do give the whistleblower a reward.
Rob Vogel [00:07:41] So the False Claims Act provides that somebody who reports the fraud against the government can get 25,30, 15, 15 to 30 percent is the range for the recovery of whatever the government brings in as a result of the case. And so actually some of the whistleblowers we deal with in the False Claims Act arena actually are doing it for the money and some of them are doing it for revenge. And that's an important factor here. You know, in the national security whistleblower field -- the money not important at all in the national security field. But most of them are doing it because of a conscience issue. They see something that they just deep down know is wrong. They are nonconformists. They are rule-oriented and they need to get this right.
Harry Litman [00:08:26] And is that sort of what you mean by, is it revenge just against some rule breaking in the system? You think of revenge as being more personal as having been beat up in the schoolyard as it were.
Rob Vogel [00:08:38] When I say revenge I mean in response to being wronged by the people they're blowing the whistle on. And most often it's retaliation against them for having tried to do the right thing. So it's a blend of revenge and conscience. Sometimes it's revenge for something unrelated. Now in this present context of this whistleblower complaint the person who stands out to me as very dangerous from the Trumpian standpoint would be John Bolton who was recently said to be fired, the morning after he actually offered his resignation. So you know he could have an ax to grind in that sense and--.
Harry Litman [00:09:18] Almost anyone in the intelligence community. Trump has been famously not just dismissive but disparaging of them. You've said, Eric did I hear you right, and Tom is that your experience as well, that usually before they come to you and the legal system, they've actually tried to do the right thing and go within the company, the system, the government et cetera and been... well gotten what sort of response generally?
Eric Havian [00:09:44] Yeah, I mean there's there are studies that actually have documented that that's exactly what happens, that they go internally first in the vast majority of cases and then they come. And you know they love -- one of the things that's so great about this job is our clients love us because not because we're so loveabl, although of course we are, but really because we're the first people who have actually listened to them and that's what they're craving. They crave someone not to just slap them down and say you're not a team player but someone who will listen with an open mind. Now, you know, most of the time we have to tell them we don't think you really it's in your interest to file this case. You just don't have all the facts or whatever but they're still grateful.
Harry Litman [00:10:26] That's something people don't know, right? We hear about the big verdicts, but those are you know really really the exception. And there's a lot. Well it's it's a tough road being a whistleblower, would you say?
Tom Mueller [00:10:38] I've heard constantly in the interviews that I've done for my book that the whistleblower would say, "I just couldn't get anyone to hear me. I kept saying the same things." And they began to kind of question their sanity and I think they're co-workers. The reason that some people are sent for fitness for duty psychological exams is because their co-workers are thinking, "This person must be crazy because they're torching their career." There is a genuine disconnect and understanding and simply cannot understand what this person is doing.
Harry Litman [00:11:04] Let's be more concrete. So what is a typical response from the company, the entity. What are, what are you--
Rob Vogel [00:11:11] Let me give you an example. One of the whistleblowers who I represented was the medical director of a company and he was fresh out of his medical training and he discovered that his company was selling a defective product. He raised it with the board of that company and they unanimously said that there was no reason to disclose this defect to the FDA. They also said they were going to fix the problem. He bided his time for a few months and he realized that they were not fixing the problem. And so he, at that point decided, to contact counsel and he ended up contacting me. And this was about now three months after he had already raised it with the board. He brought it back to the board and they again voted unanimously not to do anything, with him being the lone dissenter. In our first conversation, what he said to me is, "Am I crazy?" And I had to explain to him that actually he wasn't. That this was a pretty common phenomenon, at least in my practice, where people who worked for companies that were thought to be reputable, thought their company would not do such a thing, and they must be the only one who thinks that this rule, and it's a very fundamental rule, you know like don't produce a product that kills the patients or don't backdate all the documents. You know, for an accountant. That they're the only one who actually thinks that this matters.
Harry Litman [00:12:41] I mean, I can chime in on that from my own experience. There are instances of, really you know, wicked or creepy pushbacks on the whistleblower. But this notion of paralysis is what I've seen a fair bit. That someone, they'll be faux responsive to the whistleblower, "We're thinking about it. We'll take care of it." A few months will pass and then, basically, they've spoken to some lawyer or somehow gotten frozen and without really disparaging him, but obviously seeing him now as arm's length, an outsider, someone to fear and that vibe, of course, when that happens in a workplace, you know it right away. It's just nothing ever happens. Tom?
Tom Mueller [00:13:26] Part of the reason that it's so destabilizing as a whistleblower too is that sense of almost, "Am I the crazy person here? Everyone else is saying black and I'm seeing white." Until they find someone like Eric or like Rob, to be able to talk and have them say, "Oh, yeah. This is standard we see this all the time." People are making money decisions instead of health decisions. Untill they hear that voice, they can really begin to question their own sanity.
Harry Litman [00:13:51] Why is fraud so rampant? You know, so Rob in your situation, it's not as if the board as a whole did this, you know, greedy and malevolent decision but somebody did in some part of the company and it's then the company as a whole that gets scared to make it right. I mean, you know, you find again and again, you almost see a defense. How could they be so stupid? And yet, they are. So, Eric how can they be so stupid? Companies that commit huge fraud? How did it happen that somebody put it in that 50 dollar part and everything went dark?
Eric Havian [00:14:27] Well, you know, if your kindly Mr. Jones and your company is three people and you deliver milk on the weekends, you know if your people are cheating you or the customers. It's really easy. As our economy has become more complex, as companies have become ever larger, as the structures of those companies have become more complicated and there's less control at the top so that even if you are a CEO who wants to do the right thing, you don't remotely control that organization. And what you do, though, as a CEO really matters. Because if you create unreasonable pressures for profitability, those pressures will filter down. And the trouble is you don't know how they're going to filter. And oftentimes, if you're in a large organization, someplace in the organization there's some manager who's got some bill that's due that they can't cover or that they foresee in six months or a year and they're going to say, "Look, I got to make these numbers. I've got to make this happen. I don't care how you do it." And maybe they're not the ones who actually commit the fraud, it may be someone even below them who feels that pressure, but that sort of corporate pressure with the need to report the earnings as of tomorrow every single day. Those kinds of pressures I think are what are just increasing in our economy and that's what creates the fraud.
Harry Litman [00:15:38] Legally speaking, how high does that have to go up in order for the company to have liability for the fraud? Is that a hard question?
Rob Vogel [00:15:46] Nancy that's a very easy question. It doesn't have to go high at all. If somebody is acting within the scope of their employment and they are committing fraud, then the company is going to be liable. There has been a split in the law over whether it has to be benefiting the company or benefiting the person. Can the company be excused if it was just to benefit the person individually? And even there, the law tends to say that the company is liable.
Harry Litman [00:16:10] What accounts for the sort of social ambivalence that I think we really do have toward whistleblowers. Whistleblowers report experiences when they come to the lawyers of being really ostracized, having hellish couple of years and yet they're extolled. You know, just yesterday Senator Grassley gave that kind of paean to whistleblowers that you hear in the public sphere. But but people, in fact , feel ambivalent about them. Do you think a) That's correct? And b) what accounts for it?
Tom Mueller [00:16:43] Well I think, you know, all of us to a certain extent, being human beings, are schizophrenic, in the sense that we value and we claim to value truth and justice and genuinely feel that's important but in our day to day lives in our workplaces loyalty and obedience quite often trump, no pun intended, truth and justice. And, in this particular case, you know where your bread is buttered is where your allegiance is lie. You know, and even when we recognize that that a whistleblower has performed an amazing service, saved billions of dollars in fraud or saved thousands of lives, there's still that little voice in us, that little voice that says, "Yeah but they turned on their team. They weren't a team player."
Harry Litman [00:17:27] Nobody likes a tattle tale.
Eric Havian [00:17:27] I mean, and you're seeing it now in real time. I mean, you know, these Republicans who are trying to defend the indefensible, they see the president going out and saying this is treasonous, that perhaps we should be executing this person and all of them know that's wrong. I mean, every single one. I question whether the president does, but there's no question that the Republicans in Congress all know that that is a really bad and wrong thing to say and yet, you know, it's like the old expression, "Where you stand depends on where you sit." And that's the problem.
Harry Litman [00:17:58] When we think of whistleblowers in kind of common culture, I think they bring to mind a spectrum of different people. I would put up you know Daniel Ellsberg as one. Katherine Gunn whom there's a new movie about starring Keira Knightley. But who did a report in sort of real time in the Iraq war. But there's also maybe Edward Snowden, Julian Assange. Do you yourselves have sort of views about -- do you think the different positions they are in represent sort of morally important distinctions? Are are all whistleblowers born or made equal? What about this, you know, the spectrum I've laid out. Do they all count as whistleblowers? And what makes for a more or less righteous whistleblower, as you see it.
Tom Mueller [00:18:47] Well I think in the current environment where corruption, institutional corruption is extremely widespread, the breadth of whistleblowing the definition of whistleblowing tends to expand to anyone with a conscience who's willing to act on it. Now obviously there are laws that specifically determine who are official whistleblowers according to law. But I think all the people you mentioned had good facts and brought forward, in good faith, those facts under the definite impression that they represented a serious misconduct. And those facts have stood the test of time. If Edward Snowden revelations had caused the death of one person, you would've seen that person's body on the front page of every newspaper all or maybe--.
Harry Litman [00:19:28] Everybody? You guys agree with that.
Rob Vogel [00:19:30] I don't agree with Assange. I don't think Assange fits into the category the others. He seems to be broadcasting things wherever he can get them to hurt whoever his agenda wants him to hurt.
Eric Havian [00:19:40] Yeah, well I know -- when I think of Assange--.
Tom Mueller [00:19:40] The question is, "Is there an agenda? Or just no editing?"
Rob Vogel [00:19:45] I suspect that there is an agenda, but that's my own. I don't know much about--.
Harry Litman [00:19:49] Of course, whistleblowers can have agendas. .
Eric Havian [00:19:50] Well they almost always have some agenda but sometimes it's a very narrow agenda, to simply get the facts out. But I think Assange is a harder case. I wouldn't dismiss him entirely. I mean, the thing that's troubling to me about the Assange case and I've written about this, is that they're using the Espionage Act to go after him and the actual espionage piece of it that fits within the statute. It's a hair's breadth of evidence really. It's minuscule evidence and yet they're using that because they want to say, "No we're not going after him as a journalist. We're going after him as essentially kind of a spy." And I just think that that's dangerous because there really isn't a lot of to distinguish Assange from other people who are the "good journalists" and who are objectively reporting in terms of being prosecuted for espionage.
Harry Litman [00:20:39] Well that doesn't make that a special case and I'll state my probably contrary view in this group that Snowden seems different to me because this sort of heroic tale that he presents of having outed the abuses domestically were -- first of all he didn't come forward first. I don't know if that's essential for a whistleblower but so much of what he revealed was a) dangerous to people in the field and b) not what he is lionized for having revealed. Let me ask about one other case before we move on to the whistleblower because I think some listeners are pretty interested in it Reality Winner? Any thoughts about her?
Eric Havian [00:21:16] Well she, I mean, my feeling about her is that it was really the sentence that seemed unfair.
Harry Litman [00:21:22] Right.
Eric Havian [00:21:22] I mean, it's one thing to have said, "OK. She shouldn't have done what she did." But but she clearly didn't have nefarious motive. She didn't turn it over to a foreign government. She turned over national security information to the press. To The Intercept. And typically, at least before the last five to seven, eight years, that was viewed as very very different and not deserving of long prison terms. But she got five years and that's a long time.
Harry Litman [00:21:46] And also arguably, indistinguishable, from what like high officials do in Washington every day--.
Tom Mueller [00:21:52] Right, if you look at David Petraeus and how he was treated and the conduct that he engaged in, the double standard hits you in the face.
Harry Litman [00:22:00] Yeah, the big shots definitely you know drop the dime on the journalist. All right. So let's move to the whistleblower complaint that has, in fact, brought the Age Of the Whistleblower crashing down on us. So the whistleblower that launched the Ukraine inquiry, first of all notice there were 12 people on the phone, one of whom we've just learned, is the secretary of State Pompeo. And yet, only the whistleblower came forward. So is that consistent with your experience, this sort of thing Rob you were talking about with your client? All these other people knew something was amiss. We have only this one mystery man or woman who actually blew the whistle and he or she was not even among the 12.
Rob Vogel [00:22:47] That's completely consistent with my experience for two reasons. One, is that this person is blowing the whistle on people who have power over his career and paycheck and that's enormous of course. Which one of us would counsel somebody to do something that's gonna put their family in jeopardy because they have no income. And perhaps no health insurance et cetera. And the second thing is, as we talked about earlier, it goes against the fact that he's not going to be viewed as a team player. So he's wondering, all these other folks, these other 10,12 people who heard the call and the many people talking about it, they're not going forward. Why shouldn't I just take the route that they take and be part of the team?
Harry Litman [00:23:33] And keep my head down.
Eric Havian [00:23:34] And you know the other thing the reason in this instance is the so-called "protection" , it's known as "The Intelligence Community Whistleblower Protection Act, really provides no protection at all. Not only is there no reward, but it does say you can't retaliate against the person but it provides no route for that person to go to court to get damages as they could under the other whistleblower statutes that apply to corporate whistleblowers. So you know, why should somebody take the chance without even a real protection from disclosure of their identity and retaliation beyond the goodwill of some people who work under a president who clearly has a different agend?
Harry Litman [00:24:14] Well, why indeed? Tom, what's your -- from being really familiar with different whistleblower motivation -- how do you you know fill in the colors on what we just know as a sort of outline.
Tom Mueller [00:24:26] Well there are bystanders and upstanders. And for whatever reason, this person, perhaps gathering a consensus from other people as well, from these twelve people, perhaps becoming a clearinghouse but apparently realized, "Hey and no one else is gonna stand up and say something. I've got to do this." And I'm sure, in their job description, reporting waste fraud abuse and misconduct is in there. So in a sense it's a professional requirement, a dangerous one. But you know, I think that this person just said, "Okay no one else is gonna do it I better do it.".
Harry Litman [00:24:56] By the way, it's especially true of the intelligence community. I mean, in a sense, the intelligence community are a bunch of whistleblowers. Talk about playing by the rules. You know, trying to do what's right. And yet he or she stood alone. But there is an interesting aspect of the complaint. It's not simply the original July 25th call to Zelinsky. The complaint really does lay out a wealth of what you could call water cooler communication where you know this, in its face really alarming conduct by the present United States. Obviously, everyone's talking about it but nobody you know goes forward and actually does the complaint.
Rob Vogel [00:25:41] And yet, the nature of this complaint is that he's either explicitly or implicitly leading the investigators if there will be investigators to witnesses. So it makes me think that he understands that there are people out there who will tell the truth when asked.
Harry Litman [00:26:01] Yeah, what do you make of that? First of all, the complaint itself is really well crafted. You wouldn't normally --it almost feels like there was a lawyer--
Eric Havian [00:26:09] I wish our clients all came to us with complaints like that.
Harry Litman [00:26:11] Do you think that -- he has a very fine whistleblower lawyer now -- do you think he probably or she went to the lawyer first?
Eric Havian [00:26:21] Well, you know, that's an interesting question. It's hard really to know. But certainly his complaint is laid out the way a lawyer would lay out a complaint.
Harry Litman [00:26:29] Right.
Eric Havian [00:26:29] And so you know, we understand these analysts are extremely sophisticated and it's been suggested that he is an analyst. So perhaps that accounts for it. But you know the other thing I want to mention here is we've been saying there's only one whistleblower. Most whistleblowers require gestation periods of months if not years before they can just bring themselves to come forward. And so I don't think it was beyond the pale that if this person hadn't come forward that someone else would not have come forward in the coming weeks or months or you know maybe when the administration had gone -- which of course would be a little late but still.
Harry Litman [00:27:05] No, it's an excellent point because there's actually motivations under the other statutes to come forward first. But her, presumably, you know whenever you know about the misconduct it's right to come forward. What do you think? Well Tom you want to--
Tom Mueller [00:27:19] I just want to ask, I mean is it not reasonable to assume that in the vetting process that the IG gave this complaint, he would have questioned some of these witnesses. Kick the tires, right? Find out what this person knows.
Harry Litman [00:27:32] I think we know that happened. That that was part of the determination.
Eric Havian [00:27:35] I mean, one of the things that's going to be fascinating is whether the administration will seek to throw a cloak of privilege over the IG's interviews with these key witnesses. It will be fascinating to know what they say.
Harry Litman [00:27:47] But what a dramatic moment that's going to be when the whistleblower, you know, I think by now the whistleblower knows that he or she is at a point of no return. Can be granted protection against criminal prosecution, as you say, you know, a totally nasty vindictive administration could still make, essentially, you know, make his or her professional life hell or or go away.
Eric Havian [00:28:12] I hope he hasn't had a slip up in his handling of classified information. At any point in his career-
Harry Litman [00:28:17] I mean, right. Isn't that isn't that the number one strategy you find for your clients they have good information but the number one instinct of the defenders once once the battle is joined is to try to ravage the whistleblower for and it could have nothing to do with the complaint or your employment, right? Just send a private investigator out there is there. Is there any drinking any any misconduct?
Eric Havian [00:28:42] Forget the investigator. No one has yet threatened to execute one of my clients. (LAUGHTER)
Harry Litman [00:28:47] What about -- do you think by the way that constituted reprisal under the statute?
Eric Havian [00:28:51] Absolutely.
Harry Litman [00:28:52] No doubt about it. So Trump has already violated the statute. Well you're not a lawyer Tom, but does that seem right to you. I mean--
Tom Mueller [00:28:59] I mean yeah. I mean, you know, I had a slightly different question. I mean, in this particular case is it not conceivable that given that Trump has as aggressively alienated the intelligence community, since his arrival and that given that this person is basically stating the case of the Intelligence Committee that the President of thee United States is a huge liability and a dangerous person perhaps treasonous, is it not the case that this person could actually have a soft landing given that his whole team is actually agreeing with what this person says?
Harry Litman [00:29:32] My best guess is he -- first of all, you raise two points. One, is we see this person as you know a total Boy Scout and hero. It does seem to me you can see a motivation. Trump remember, you know, his first day in office went after firing Comey, you know, incredibly crassly going to the was at the CIA and the in front of the wall of heroes and, you know, talking about himself this is a guy who must be loathed by many members of the Intelligence Community and you could sort of see that you know that that motivation there, that he's sort of in some ways it's the community as a whole.
Eric Havian [00:30:08] Well you know, support for him probably breaks down to about 55 percent in favor and 42 percent opposed. I mean this is the country we live in. So I think he may have something of a soft landing but, uh, I wouldn't think--
Harry Litman [00:30:19] My best guess -- what do you think? Let's go around on that. Will he actually be, you know, hurt professionally? My best guess would be no, that they wouldn't get away with it.
Rob Vogel [00:30:29] I think in the long run he will have some brightness they look forward to. But in the short run it's going to be very difficult. Because in the context of being a government employee, you know, they all answer to the top and we know what that entails. And yet you know will, in the future, will be he be treated as folk hero with all the things that go with that?
Harry Litman [00:30:51] Maybe he's next detailed to the Ukraine or Kazakhstan.
Eric Havian [00:30:54] I'd say there's a 70 percent chance that he leaves the agency before the end of Trump's term.
Harry Litman [00:31:00] Yeah I can see that right. His life has now been changed irrevocably. What do you guys think about the New York Times decision to go as far as they could to out him or her?.
Rob Vogel [00:31:14] I think that was an awful decision. And you know it's obviously the instinct of journalists to publish when they get information but there they were misconstruing the role of a whistleblower and they were buying into the defense strategy which is that it's all about the whistleblower. And if the whistleblower has second hand information, then that's not as good as as someone who was an eyewitness. And if the whistleblower has a bias that's not as good. So we need to know about the whistleblower in order to attack the whistleblower. In fact, the whistleblower provides a roadmap. And as soon as that roadmap arrives, the first job of the investigator -- and we all used to be on the Justice Department's side, so we used to run these investigations -- is to try to corroborate the whistleblowers allegations through other sources, documents and other witnesses. And it's not until you have actually corroborated these central elements that you can relax and say, now we've got a case because it's assumed that the whistleblower has some baggage.
Harry Litman [00:32:18] Right. Everyone agree?
Tom Mueller [00:32:19] Yeah, in this particular case Rob has exactly right. Need to know is that a critical factor here. If it were some abstruse fact about a nuclear power plant, if it were some abstruse question of national security that needed an explanation and needed a CV behind it to make us trust it, that's one thing. This complaint reads -- it's absolutely bullet proof. Absolutely clear. You know where these bodies are buried. You know the questions that you need to ask.
Eric Havian [00:32:47] Well you know the irony here is that the fact that the president's defenders keep emphasizing that the whistleblower has very little firsthand information is precisely the reason that his personal motivation is so beside the point. It's not relevant. He is going to identify the people who have the firsthand information. He has already said in his complaint that there are many people who he spoke with who had firsthand information. So his credibility is not what's on the line. He is not going to be the one that testifies if there is a Senate trial of impeachment. It's going to be the people who have the firsthand knowledge whose credibility will be at issue and the president and his defenders are free to attack their credibility if there's a basis to do so. But to attack this witness's credibility, when as Rob says he's just providing a roadmap is nonsensical. But it is the playbook. I mean, the president has stolen corporate fraud America's playbook on how you deal with whistleblowers and discredit them.
Rob Vogel [00:33:40] Right. But what is really behind the corporate playbook on trying to take on whistleblowers is deterrence of future whistleblowers much more than anything else. It never works in terms of defeating the investigation that is started as a direct result of the whistleblowing. What it is doing -- that said it can deter other witnesses from coming forward by showing them, "Look what happens to you if you did do what this whistleblower just did."
Harry Litman [00:34:09] And by the way, we've talked about, you've talked about motivations of the honest whistleblowers et cetera. We all know stories, I expect you do as well, of people who in fact were kind of ruined unfairly for having blown the whistle. Yes? Especially if they didn't have sort of the benefit of good legal advice, kind of you know, going in?
Eric Havian [00:34:29] That's a common outcome --.
Harry Litman [00:34:31] Stresses, divorce--
Eric Havian [00:34:33] Absolutely. And that's why you need a financial reward. I mean, there should be a financial reward for national security whistleblowers. Not because we want to pay for the information but because these people's lives will never be the same.
Tom Mueller [00:34:43] It's a net present value lump sum payment for a lost career.
Eric Havian [00:34:47] Exactly.
Rob Vogel [00:34:47] That's exactly right. And when prospective clients come to me and I'm sure it's the same with with you Eric and Harry that they come in and they present the scope of the fraud and you do a top of the head damages analysis. What is the likely return here? And you ask the client what are they earning right now. What is their age? I mean, these are the questions we ask, so you can give them an idea of the likelihood of success in the case times the possible homerun value times the possible, you know, regular base hit value and then the likelihood of any success at all etc. and the taxes and the fees that go into it and you say to them, "Look, you know, even though this case you know we've had executives come to us that are earning a million dollars a year. And even if the case is worth to the government 50 million dollars it may not be worth it to you.
Harry Litman [00:35:45] Yeah. So this is a, you know, a great point. And many of them come in having read about the home run stories and I think they eventually come to completely value this sort of more sober look of their attorney. But Eric, do you want to sort of amplify what Rob just said? What's your first meeting or second meeting with a whistleblower like? What are you trying to accomplish and, you know, how are you trying to, sort of, you know give your best advice to someone who hasn't decided whether to file yet?
Eric Havian [00:36:19] Well Rob describes stage two for us. Stage one is always: Listen. Really really listen. You know that often--.
Harry Litman [00:36:28] You mean you're doing the listening?
Eric Havian [00:36:29] I'm doing the listening. And I'll have questions sometimes but sometimes you don't even have to ask the questions or sometimes you don't even get to ask questions because you've got somebody who's been dammed up for a long period of time. They will roll their story out to you. Now sometimes, you know, I'm a lawyer. I think like a lawyer. I have to reorganize the story so I can understand it. But but those first meetings are usually devoted to that so that you can do the analysis that Rob just described. So you can say to him, "OK I now hear what you're saying. This this is good or this is not good. Or you know home run or a base hit or whatever. And this is what it would be worth to you. You need to make a decision. Is this really worth it? Because I can tell you now, here's what's going to likely happen to you in terms of your career. Things we can't predict or what's going to happen to you in terms of your family and well the stresses that will be put on your family."
Harry Litman [00:37:20] Although, by the way, the lawyer client relationship here, maybe you would compare it to Family Law. It really isn't like a normal business client. You will wind up with with, you know, quite a lot of handholding, especially once you've committed then to sort of be in the boat together.
Eric Havian [00:37:36] One of my former partners had a client living in her home for a while because she just felt like it was the right thing to do.
Tom Mueller [00:37:43] Is it a concern as practitioners to have these wonderful on paper these wonderful guarantees and the noble whistleblower and so on on the books on the law books. But in practice in society we acknowledge accept acquiesce in the personal and professional destruction of whistleblowers as well.
Rob Vogel [00:38:01] Well let me put it this way. It is a lot easier for us to decide to take cases when somebody is coming into our office and the die has already been cast. They have already been fired for what they did. They've already suffered the retaliation. And so now they have much less to lose or someone who comes in who's at retirement age. You know, these are great prospective clients because you don't have the same cost benefit analysis you have to go through.
Eric Havian [00:38:28] Your question though is really a good one, Tom. Because as a society we're getting better. I guess that's what I would say. I mean you wouldn't before seen whistleblowers as remotely characterized as heroes and now at least there's some segment of society that appears to recognize that. It's still not as good as it should be and it's still not enough to keep those people from being viewed by a large segment of society as rats as tattle tales as whatever expression you want. But we're moving in the right direction. And this national security whistleblower, who clearly, his motivations as far as we can tell so far are all the right ones I think helps the image of people who are whistleblowers.
Harry Litman [00:39:06] Tom, you couldn't have gamed it precisely to know that your book would come out, you know, the week of the this whistleblower but obviously your, well you've made clear in your book, that you think the whistle blower phenomenon is is growing and is going to continue to be really important across broader sectors of U.S. society, European society, and the like. Why do you think that? What's your sense of, you know, whistleblowing over the next 10, 20 years.
Tom Mueller [00:39:40] I think whistleblowing is on the rise because institutional corruption is on the rise. And I think that, ideally, we wouldn't need whistleblowers. So many whistleblowers have told me, "Look I was just doing my job. Why do we need a special word for this? But until we can get institutional corruption under control, whistleblowers are really the only source of information particularly in a highly secret environment. They're really the only source of information for public harm, both financial harm and danger to the public's health.
Eric Havian [00:40:11] You know, there is actually some analytical support for what you just said, Tom. Because there are studies have been done internationally of countries and they asked questions about how often do you see wrongdoing that you're told to ignore? And then, how how much whistleblowing do those countries have? And they find a pretty close correlation. The more people are forced to look the other way when they see wrongdoing, the more likely they are to blow the whistle.
Harry Litman [00:40:37] Forced you mean just by kind of social pressures forced.
Eric Havian [00:40:39] Exactly social pressures. I mean, these are countries that don't have ample reward system for whistleblowers like we do in the United States or corporate whistleblowers. But nonetheless, the psychological pressures -- many people just can't internalize and live with comfortably the idea of being told to ignore serious wrongdoing. And I really believe that even though we don't have a high percentage of people whistleblowing of the total population of people who know of wrongdoing, still I do think it's even for the people who don't blow the whistle, they go through a lot of turmoil when they're told to look the other way at corporate wrongdoing or the National Security wrongdoing especially obviously the stakes are higher.
Rob Vogel [00:41:18] But one of the fundamental underpinnings of a successful whistleblower law or regime is that you can depend on the rule of law and that's what makes our current time so perilous because we have seen the erosion of these standards of law in the Justice Department itself at the highest levels and in various other agencies. And, you know, when when you think about blowing the whistle you have to be dependent on some institution to take your allegations seriously and take it forward and take action, not just to protect you but to take some action. And here what you had was this whistleblower's complaint was effectively quashed in the first month by the Department of Justice apparently or the White House. And only through the perseverance apparently of the Inspector General of the Intelligence Community did this come to light.
Harry Litman [00:42:11] I think we could go for hours more. It really is a phenomenon. we're in the whistleblower age and it's not going away. It's time though for our final segment Five Words or Fewer where we take a question from a listener and each of the Feds has to answer in five words or fewer. Our question today comes from a listener on Twitter and it is, "Will there be more Trump administration whistleblowers?" Tom, five words or fewer:
Tom Mueller [00:42:40] Yes. Corruption causes whistleblower cascades.
Eric Havian [00:42:45] Yes, but not till the end of the administration.
Harry Litman [00:42:49] Judges?
Eric Havian [00:42:49] You don't count those articles. Those articles don't count.
Rob Vogel [00:42:53] Yes. Dissenters realize the stakes.
Harry Litman [00:42:57] Yes.
Harry Litman [00:43:02] Thank you very much to Eric, Rob, and Tom and thank you very much listeners for tuning in to Talking Feds. If you'd like what you've heard, please tell a friend to subscribe to us on Apple podcast or wherever they get their podcasts and please take a moment to rate and review this podcast.
Harry Litman [00:43:21] You can follow us on Twitter at Talking Feds pod to find out about future episodes and other Feds related content. And you can also check us out on the Web at Talking Feds dot com where we have full episode transcripts.
Harry Litman [00:43:36] Submit your questions to questions at Talking Feds dot com.
Harry Litman [00:43:40] Whether it's for or Five Words or Fewer or general questions about the inner workings of the legal system for our Sidebar segments.
Harry Litman [00:43:50] Thanks for tuning in. And don't worry, as long as you need answers the Feds will keep talking. Talking Feds is produced by Jennie Josephson, Dave Moldovan, Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer. Production assistance by Sarah Philipoom. This episode was recorded by Courtney Columbus. Transcripts by Matthew Flanagan. Thanks as always to the incredible Philip Glass who graciously lets us use his music. Talking Feds is a production of Dalito LLC. I'm Harry Litman. See you next time.
