May 26, 2017

US president Donald Trump has retained an attorney to represent him in the various ongoing probes into his campaign’s possible ties with Russia—Marc Kasowitz, a long-time advisor with little political experience and ties to a Russian bank.

But Trump isn’t the only one lawyering up. Washington, DC law firms say they’re getting a lot more inquiries from government employees, who are generally calling for one of three reasons: They’re worried about being caught up in an investigation, worried about being fired, or considering becoming whistleblowers.

Leaving aside the Russia investigations, dozens of federal lawsuits have been filed over the administration’s “Muslim ban,” its stance on climate change, and its alleged violations of ethics rules, among other topics—all of which could tap administration officials as witnesses.  “The atmosphere is ripe for retaliation” inside the federal government. At the same time, Trump’s “America First” budget has raised fears of massive federal job cuts; some of his cabinet picks are dismantling the core missions of the agencies they run; and the president’s own tumultuous management style means that top aides are constantly being told they’re on the verge of being fired.

As a result, unhappy government employees are calling lawyers to figure out how to protect themselves, and sometimes stick it to their bosses. Right now, “the atmosphere is ripe for retaliation” inside the federal government, said Michael D. Kohn, founding partner with Kohn, Kohn, & Colapinto, a DC firm that specializes in representing whistleblowers.

Under investigation

The Russia probe by special prosecutor Robert Mueller is expected to last months or even years, and he is likely to subpoena documents and call on witnesses from the campaign and the administration.

Trump’s former national security advisor, Michael Flynn—who was fired in February for concealing the extent of his Russia ties—hired a lawyer (paywall) to represent him before Trump even took office, after learning that the Justice Department was investigating him. Trump’s son-in-law and lieutenant Jared Kushner, who was yesterday revealed to be under scrutiny in the FBI investigation, has a lawyer to speak for him too. Other senior figures involved in the Trump campaign should be doing the same, said John Mahoney, a DC federal employment lawyer: “If you’re concerned you may be a subject or even a witness in a federal investigation, you should call a lawyer as soon as possible.”

 “What we’re seeing now is a lot of concern from our clients at the senior level.” The Office of Government Ethics (OGE) is bracing for questions about how administration officials can pay for expensive legal fees. It’s reportedly reviewing its policies, last updated in 1993 (pdf), on how government employees can set up legal defense funds while still obeying rules that ban them from getting non-government income.

Some people have also been singled out for investigations. A group of law professors has asked the Washington DC bar’s disciplinary body to disbar Kellyanne Conway, a lawyer and sometime informal spokesperson for the president, for her frequent falsehoods in TV interviews. And a business owned by Steve Bannon, Trump’s chief strategist, is accused of violating the California Corporations Code for not paying state taxes. (Attempts to reach a spokesperson or lawyer for Bannon or Conway were unsuccessful.)

Fighting the pink slip

While investigations swirl around the White House, there’s a different type of legal battle being fought in the trenches of the federal government.

Anytime there’s a new president, it’s common to see an uptick in inquiries from federal employees worried about job security and or changes in their jobs, attorneys say. But “what we’re seeing now is a lot of concern from our clients at the senior level,” said Cheri Cannon, a managing partner with Tully, Rinckey.

 “We’re seeing a lot of people getting disciplinary letters.” They’re wondering whether lots of government jobs will be cut, as proposed in Trump’s draft budget, and whether there will be changes to how federal employees can be fired. Managers at the Environmental Protection Agency (EPA) are examining how to trim staff by using buyouts and early-retirement offers, including offering a $25,000 one-time payment to employees of any age who leave voluntarily. (Trump has proposed cutting the agency’s budget by about one third.)

The Department of Veterans Affairs, meanwhile, is in the midst of an ethics-related purge, Cannon said. “We’re seeing a lot of people getting disciplinary letters” accusing them of wrongful conduct at the “Senior Executive Service” level—the managers just below political appointees. “This is one way to thin the crowds—you start trying to get rid of the people who have posed a problem in the past,” Cannon said.

These employees are calling lawyers to figure out what their rights are, exactly, and how to fight back.

Paradoxically, because the administration has been slow to fill both career and non-career jobs, it has been hard to actually shrink the federal workforce. The Office of Personnel Management, which processes retirements, got a director only this week and a chief of staff in April; as a result it’s months behind, said Cannon.

Any inhabitants of the West Wing who worry they could be fired don’t have the same legal rights, though. Political appointees serve at the pleasure of the president, “and none of the advice we give them is going to prevent them being fired,” said Cannon. There’s little more they can do to negotiate, except to ask their bosses “Don’t trash me in the press on the way out the door,” she said.

But if they do negotiate some sort of confidentiality agreement in return for a scandal-free exit, that doesn’t mean they can’t testify later in Congress or an investigation, Mahoney points out.

Picking up the whistle

Career civil servants who are concerned about big changes in their departments are also contacting lawyers to learn how to blow the whistle on fraud, waste, and mismanagement—and protect their own jobs while doing it.

Kohn said he has seen an increase inquiries from federal employees, although not necessarily those employed by the White House directly. Thanks in part to a law passed during the Barack Obama administration, there are robust protections for some federal employees who are fired, suspended, or forced to retire after publicly identifying a problem in their division.

 Dissatisfied employees will “look for an opportunity to blow the whistle on fraud, abuse, and mismanagement.” For many of these employees “the real issue is less job security than job satisfaction,” said Joseph Kaplan, a founding partner of Passman & Kaplan. For example, someone in the civil-rights division of the Department of Justice who had been investigating voter suppression and was moved to a different job would likely be dissatisfied, Kaplan said. So would federal employees who see their jobs as important to protecting the public, like those working for the EPA or the Occupational Safety and Health Administration, both of which face curtailment.

Dissatisfied employees will “look for an opportunity to blow the whistle on fraud, abuse, and mismanagement,” Kaplan said. Some administration officials are actively trying to identify potential whistleblowers, he said.

Federal whistleblower protection only goes so far, however. “If you’re a senior executive you have no meaningful protection” under the federal whistleblower law and raising a subject internally could result in retaliation, Kohn says. National intelligence agencies also aren’t covered by the Whistleblower Protection Act—staff there depend on the head of their agency for protection, which means that there’s no independent review.

But these senior staff can still find ways to blow the whistle. At the very top levels, the government responds to “political pressure and public pressure, so providing information to the news media is often the single best way to bring some form of accountability to the system, and going to the media can constitute a protected disclosure,” Kohn said. Protected disclosures include revelations about wrongdoing, gross waste, abuse of authority, or dangers to public health.

Going to Congress is also a protected disclosure, notes Kohn, and provides a “safe space” even for top-ranked government employees. As the investigations into the Trump administration continue, expect to see more employees looking for these safe spaces, and retaining lawyers while they do.

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