Threats like these are a hallmark of this administration’s attempts to control the narrative, and they aren’t always couched as requests. In our experience, they frequently take the form of an order. But gag orders can run afoul of federal whistleblower law. Those that do shouldn’t go unanswered: Congress should investigate all illegal gags, and a new president should correct this problem permanently.
In the past three years, the Trump administration has let loose a flood of gag orders across federal agencies — a trend that has persisted throughout the pandemic. In 2018, a watchdog agency found that the Department of Health and Human Services broke the law with three gag orders issued during the first half of Trump’s tenure. In 2019, the president’s doctors and medical staff at Walter Reed were made to sign nondisclosure agreements, as NBC and The Washington Post reported last week. The suppression of scientists’ speech continued through the coronavirus response. As early as February, a report found that government officials were required to “coordinate” all statements about the virus with Vice President Pence before they could be sent out to the public. Last month, an email revealed Trump political appointees were gagging a top official at the Centers for Disease Control and Prevention after she stressed the seriousness of the coronavirus.
These events underscore a reoccurring tendency of the Trump administration to suppress speech, science and safety for the sake of the president’s image. But gagging government scientists can’t continue. It’s not up for debate. Simply put, it’s illegal.
Government workers have a right to blow the whistle. That right is required by law to be outlined in all agency communications that restrict their workers’ speech — either to their colleagues, Congress or the media. When the White House allegedly told Anthony S. Fauci that he couldn’t appear on ABC News, they were required to remind him of his whistleblower rights. When a former Department of Health and Human Services spokesman attempted to instruct career civil servants on “what they should or shouldn’t say,” as The Post reported, he was required to remind these bureaucrats of their whistleblower rights. The failure to do so violates the law and results in a blanket “chilling effect” on bureaucrats — scientists and staffers alike — that prevents would-be whistleblowers from speaking up. Future whistleblowers may be too frightened to tell the truth about an agency’s wrongdoing, believing an agency’s gag order overrides their federal whistleblower rights. This is false. That fear is exactly why Congress requires the executive branch to remind workers that their whistleblower rights supersede any restrictions they face whenever those restrictions are issued.
There are federal laws on the books designed to protect federal workers’ rights to blow the whistle on the government, regardless of any agency policy or directive, free of retaliation. Dating back to 1912, the Lloyd-Lafollette Act protects all communications by federal employees to Congress. The anti-gag order provision in the 2012 Whistleblower Protection Enhancement Act prohibits the government from restricting speech without also including a congressionally drafted addendum that federal workers’ whistleblowing rights cancel out any contradictory restrictions. Failure to include these special phrases in any agency communication restricting speech is a violation of the statute.
Enforcing these statutes and eliminating gag orders is a two-front endeavor. Congress needs to wield more oversight power to enforce the laws prohibiting gag orders. We have the laws; now Congress needs to bind agencies to them. It is a simple task: Force agencies to rewrite their communication policies or gag orders, whenever issued, to include those crucial whistleblower protections. If agencies refuse, they break the law. And appropriations laws give Congress the authority to slash the salaries of any White House official who enforces an illegal gag order.
This congressional route is an effective one to seek accountability, especially to ensure that government officials can come forward on restrictions related to the pandemic. But absent sufficient legislative oversight, a second option needs to come through the executive branch: The president would have to issue an executive order that prohibits the enforcement of gag orders that conflict with federal whistleblower rights. This would solidify the rights of whistleblowers for the future. It is unlikely Trump will walk back his restrictions, but depending on the election results, a President Joe Biden could issue this executive order on day one. That would be the best way to demonstrate not only the importance of Congress as a coequal branch, but respect for his workers’ right to blow the whistle.
During a pandemic, the stakes are high — whistleblowing can save lives — so nothing should stand in a whistleblower’s way. White House residence staffers should be able to speak out about their unsafe working conditions. Scientists should be able to assess the severity of this pandemic. Secret Service agents should be able to describe substantial threats to their health and safety. The law grants these individuals these rights. Yet they may be tricked into thinking their rights don’t exist when they’re illegally instructed to keep quiet.
It’s not politics; it’s the law. And it needs to be enforced.