Grassley to Attorney General: Instructions to Employees Must Include Whistleblower Guidance
WASHINGTON – Senate Judiciary Committee
Chairman Chuck Grassley (R-Iowa) called on Attorney General Jeff Sessions to
update instructions provided to Justice Department component agencies that did
not appear to comply with the law.
In a recent memorandum to the
heads of Justice Department components, Sessions instructed department
employees to not communicate with “Senators, Representatives, congressional
committees, or congressional staff without advance coordination and
consultation with OLA [Office of Legislative Affairs].” While Grassley
recognizes the need for coherence, consistency and timeliness of official
communications with Congress, the instructions to component heads did not
appropriately address the rights of federal employees to make direct protected
disclosures to Congress.
“Thus, please review this
memorandum and address the deficiencies I have raised as soon as possible with
a corrective communication to all employees who received it,” Grassley wrote concluding his
letter to Sessions.
Grassley, the cofounder of the
Senate Whistleblower Protection Caucus, has long worked to ensure that federal
employees who want to shine a light on waste, fraud and abuse in government are
sufficiently protected from retaliation. Further, Grassley has maintained that Congress
not only has the power but the duty to conduct oversight of the federal
government, a process in which whistleblowers can play an essential role. Last
June Grassley wrote to the President
on this issue,
excoriating a Justice Department opinion that instructed federal agencies to
limit cooperation with Congressional oversight. Grassley has raised similar concerns during previous administrations
about executive branch agencies seeking to limit direct communications between
executive branch employees and Congress.
Full text of Grassley’s
letter to Sessions follows.
February 5, 2018
VIA ELECTRONIC TRANSMISSION
The Honorable Jeff Sessions
Attorney General
U.S. Department of Justice
Dear Attorney General Sessions:
Recently the Committee obtained a copy of a memorandum, attached
here, from you to the heads of all Department of Justice components and all
U.S. Attorneys entitled “Communication with Congress.”[1]
I write to alert you that the memorandum does not appear to comply with
existing law and to request that you revise it accordingly.
The memorandum purports to direct Department employees that:
communications
between the Department and Congress, including those pertaining to policy,
legislation, political appointments, nominations, intergovernmental and public
liaison relations, cases and investigations, and administrative matters, will
be managed or coordinated by the Office of Legislative Affairs (OLA) to ensure
that relevant Department and Executive Branch interests are fully protected.
The memorandum further attempts to prevent direct communications
between federal employees and Congress. It admonishes that “attorneys,
officers, boards, divisions, and components should not communicate with
Senators, Representatives, congressional committees, or congressional staff
without advance coordination and consultation with OLA,” and that all
inquiries, whether from “Members, committees, [or] staff should be immediately
directed to OLA upon receipt.”
I appreciate that the Department, and indeed the Executive Branch,
must speak with one voice on official matters, and that it has a right to
ensure that its official positions are communicated in an orderly and coherent
way. I also appreciate that the Department is concerned that it provide timely
responses to congressional inquiries and has instructed components to “make it
a priority to assist OLA in this regard.” Timely and accurate responses to
congressional inquiries are crucial in promoting comity between the branches
and the constitutional imperative of congressional oversight.
Unfortunately, the memorandum fails to address the right of
employees to make protected disclosures directly to Congress. The law is clear
that any non-disclosure agreement or policy, including any policy that purports
to restrict the communications of federal employees, must contain a clear
exception for lawful whistleblowing.[2]
Additionally, denying or interfering with the right of employees to furnish
information to Congress is also against the law.[3]
Federal officials who deny or interfere with those rights are not entitled to
have their salaries paid by taxpayers’ dollars.[4]
Without directly addressing the rights of federal employees to communicate with
Congress, the memorandum could leave the impression that the Department is
attempting to prevent lawful disclosures and discourage employees from
exercising their statutory and constitutional rights to directly communicate
with Congress. Thus, please review this memorandum and address the deficiencies
I have raised as soon as possible with a corrective communication to all
employees who received it.
I appreciate your cooperation in this important matter. If you
have questions, please contact DeLisa Lay of my Committee staff at (202)
224-5225.
Sincerely,
Charles E. Grassley
Chairman
Committee on the Judiciary
cc: The Honorable
Dianne Feinstein
Ranking Member
Committee on the
Judiciary
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[1] See Attachment
1.
[2] 5 U.S.C. § 2302(b)(13) (It is a prohibited personnel
practice to “implement or enforce any nondisclosure policy, form, or agreement,
if such policy, form, or agreement does not contain the following statement:
‘These provisions are consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or liabilities
created by existing statute or Executive order relating to (1) classified
information, (2) communications to Congress, (3) the reporting to an Inspector
General of a violation of any law, rule, or regulation, or mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific
danger to public health or safety, or (4) any other whistleblower protection.
The definitions, requirements, obligations, rights, sanctions, and liabilities
created by controlling Executive orders and statutory provisions are
incorporated into this agreement and are controlling.’”); Consolidated
Appropriations Act, 2017, Pub. L. No. 115-31, § 744, 131 Stat. 135, 389 (2017).
[3] 5 U.S.C. § 7211 (2012) (“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.”).
[4] GAO
B-325124.2 (Apr. 5, 2016) (finding that two employees from the Department of
Housing and Urban Development prevented another employee from speaking with a
congressional committee when he was willing to do so, and finding the payment
of those employees’ salaries during that period to be a violation of the
Anti-Deficiency Act); Letter from Aaron Santa Anna, Acting General Deputy
Assistant Secretary for Congressional and Intergovernmental Relations, U.S.
Dep’t of Housing and Urban Development to Charles E. Grassley, Chairman, U.S.
Sen. Comm. on the Judiciary (June 19, 2017) (notifying Chairman Grassley that
HUD had initiated collection of salary inappropriately paid to a former HUD
employee who prevented an employee from having direct communications with
Congress); Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 713,
131 Stat. 135, 379-80 (2017). (“No part of any appropriation contained in this
or any other Act shall be available for the payment of the salary of any
officer or employee of the Federal Government, who - (1) prohibits or prevents,
or attempts or threatens to prohibit or prevent, any other officer or employee
of the Federal Government from having any direct oral or written communication
or contact with any Member, committee, or subcommittee of the Congress in
connection with any matter pertaining to the employment of such other officer
or employee or pertaining to the department or agency of such other officer or
employee in any way, irrespective of whether such communication or contact is
at the initiative of such other officer or employee or in response to the
request or inquiry of such Member, committee, or subcommittee; or (2) removes,
suspends from duty without pay, demotes, reduces in rank, seniority, stats,
pay, or performance of efficiency rating, denies promotion to, relocates,
reassigns, transfers, disciplines, or discriminates in regard to any employment
right, entitlement, or benefit, or any term or condition of employment of, any
other officer or employee of the Federal Government, or attempts or threatens
to commit any of the foregoing actions with respect to such other officer or
employee, by reason of any communication or contact of such other officer or
employee with any Member, committee, or subcommittee of the Congress as
described in paragraph (1).).
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