Guttman, Buschner & Brooks

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Optimizing regulatory compliance enforcement in a global economy

With regional offices of the Securities and Exchange Commission, the Environmental Protection Agency, and the Equal Employment Opportunity Commission, Atlanta is not just a center of international trade, it is also a center for compliance enforcement.

With the growth of multinational corporations whose businesses are not defined by geographic boundaries, government agencies and their regional offices that enforce compliance must leverage limited resources to maintain a watchful eye and enforce the laws. Today, this may mean collection of evidence abroad.

The notion of leveraging resources to enforce compliance is not new. In the 1960s and 1970s when our nation passed sweeping legislation proscribing discrimination and protecting the environment, citizens suit provisions were bolted into these laws so that average taxpayers could initiate litigation where government regulators failed to take action. And of course, at a state level, a myriad of consumer protection statutes now provides citizens with the right to seek enforcement of substantive law.

Consistent with our tradition of citizen involvement in compliance enforcement, the United States has laws that, under limited circumstances, allow whistleblowers to take action even where they have not been personally aggrieved.

Federal and State False Claims Acts allow citizens to bring suit in the name of the government where they have information that the government has sustained economic injury through fraudulent or other types of wrongful conduct.

Under the Dodd Frank Amendments to Federal Securities laws, citizens can now report claims of securities fraud to the Securities and Exchange Commission.

The IRS has regulations allowing whistleblowers to bring information about tax cheats to the attention of that agency.

Under the FCA, Dodd Frank and the IRS provisions, whistleblowers are incentivized and thus compensated for their efforts with a bounty where their information or litigation leads to government recovery.

Under the False Claims Act alone, the government has recovered billions of dollars, but more importantly FCA litigation has surfaced information about the honesty of the drug industry, the quality of care provided at nursing homes, the safety of public transportation systems, and the integrity of products integral to our nation’s defense.

In an era where consumer products are manufactured abroad and shipped into domestic ports of entry like Atlanta, and drug trials necessary to secure FDA approval are often conducted abroad with little immediate supervision from the Food and Drug Administration, whistleblowers have become a mainstay of compliance enforcement. They bring forward original information or analysis, technical expertise, and through knowledge of language and culture, the ability to report wrongdoing that would otherwise go undetected.

Yet, at the same time whistleblowers add value, there is a need to ensure that whistleblowers do not flood the agencies and the courts with claims that are not properly documented and pegged to a cognizable legal violation.

Last year, for example, the SEC received thousands of whistleblower complaints but secured relief on less than 10. While many of these complaints may lack merit, some may be falling by the wayside because of a lack of understanding on the part of the whistleblower of what the SEC needs, and failures in communications and investigation by all concerned about the strengths and weakness of these cases.

There is a need to create a better relationship between whistleblowers, their counsel, and government regulators, to the common end that serious harm to the U.S. consumers can be exposed and deterred.

Earlier this month, Emory University School of Law convened a conference of whistleblower counsel and senior government regulators as part of a first step in helping these groups focus the relationship to better enforce compliance in a global economy. This was the first of what may be many dialogues that the Law School’s Center for Advocacy and Dispute Resolution hopes to convene with these parties.

How should claims be investigated before they are brought to government regulator attention? What types of claims are of interest to the government and important for establishing compliance precedent? How can government make better use of whistleblowers and their counsel? These types of issues were vetted by conference panelists.

As little as a decade ago, such a conference would be unprecedented. Yet, the world has changed markedly. Our regulatory bodies must monitor relationships across the globe while electronic communication has exponentially expanded the sea of information from which proof of wrongdoing must be culled.

In this new era, leveraging the resources of whistleblowers is consistent with a legal tradition that for more than a century has depended on the role of average citizens in enforcing the law.

By Paul Zwier and Reuben Guttman

Also, available on line at AJC.com

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Class Action Settlement Calls for Testing of Almost 20,000 South Carolina Prison Inmates for Hepatitis C

COLUMBIA, S.C., Dec. 21, 2018 /PRNewswire/ — A proposed partial settlement of a civil rights class action lawsuit has received preliminary approval from a Federal Court here in South Carolina; it will provide Hepatitis C testing to all current and future inmates incarcerated in the South Carolina Department of Corrections (SCDC).

According to the terms of a proposed agreement in Russell Geissler et al. v. Bryan P. Stirling et al., almost 20,000 current inmates will be tested along with future inmates of the SCDC.

The United States District Court for the District of South Carolina has set a fairness hearing on the settlement for February 12, 2019 at 11:00 AM in the United States District Court for the District of South Carolina in Columbia. That hearing has been scheduled by United States Senior District Court Judge, Margaret Seymour.

The settlement does not waive personal injury claims and the litigation will go forward with regard to claims for the treatment of Hepatitis C. The partial settlement was the result of significant fact discovery including document production and depositions.

The class is represented by Christopher Bryant of Yarborough Applegate LLC located in Charleston, SC and Reuben Guttman of Guttman, Buschner & Brooks PLLC in Washington, D.C. Justin Brooks, Traci Buschner, Caroline Poplin MD/JD, and Paul Zwier of Guttman, Buschner & Brooks PLLC also worked on the litigation.

Counsel representing the class praised opposing counsel for working toward this partial resolution marking an inroad toward addressing a public health crisis.

National statistics show that nearly 17 percent of nation’s inmate population has Hepatitis C, a bloodborne pathogen which can lead to death. Prior to the litigation, the SCDC had failed to test inmates for the disease, leaving them without the full awareness necessary to prevent its transmission.

The litigation will continue as plaintiffs press for the treatment of those who already have the disease. Today, several medications exist to treat and cure the condition.

“This is a terrific result, but we still have our work cut out for us to complete the litigation. This is not just a prison health issue; it’s a public health issue,” said Christopher Bryant, counsel for the class.

“This is a win for all citizens of the State of South Carolina and elsewhere. Treating inmates in prisons before they re-enter society is the type of prevention that will save lives and and save precious healthcare dollars,” said class counsel, Reuben Guttman.

Guttman, Buschner & Brooks PLLC is a nationally recognized boutique complex litigation law firm; in the healthcare area alone it has represented whistleblowers under the False Claims Act in cases which have returned over $5.5 billion to government treasuries. More information about the firm and its members can be found at gbblegal.com.

Yarborough Applegate LLC is a plaintiff’s law firm primarily focused on catastrophic personal injury, including traumatic brain injuries, dram shop/drunk driving cases, trucking cases, and wrongful death. More information on the firm, representative results, and its members can be found at yarboroughapplegate.com.

 

Also available on line here.

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Lawsuit could force SC to spend tens of millions to treat inmates for Hepatitis C

By John Monk, The State
Greenville News

COLUMBIA — A lawsuit that could require the S.C. Department of Corrections to spend tens of millions of dollars to treat possibly thousands of prison inmates with Hepatitis C, a potentially fatal liver disease, was filed Tuesday in federal court.

The lawsuit was filed by inmate Russell Geissler, 34, of Greenville, who is serving a roughly 10-year sentence for charges including armed robbery. It claims that up to 6,000 of the state’s inmates may have Hepatitis C, a liver infection especially prevalent among prison inmates..

The lawsuit alleges a violation of the Eighth Amendment to the U.S. Constitution, which bars cruel and unusual punishment. It seeks class-action status and asks a federal judge to order immediate testing of the prison system’s approximately 19,000 inmates. S.C. prisons do not now systematically test inmates for Hepatitis C, the lawsuit says.

A similar federal suit was brought against the Florida prison system. In that case, a federal judge last fall ordered that state’s prison system to diagnose and treat the most infected inmates.

The judge in that case found that Florida had “a long and sordid history of failing to treat Hepatitis C-infected inmates.” Not treating them amounted to a violation of the Eighth Amendment, showing “deliberate indifference” to inmates’ serious medical needs.

Last week, the state of Massachusetts tentatively settled another similar federal lawsuit, agreeing to begin testing and treating its prison inmates. Similar class-action lawsuits are pending in a dozen other states.

Prison inmates have a constitutional right to appropriate and timely medical treatment. Inmates have no other access to medical care other than what the state allows or provides.

There is effective treatment for Hepatitis C. New drugs to treat it began to come on the market in 2013, and treatment nearly always is successful, according to medical authorities. If the infection is untreated, it can lead to liver cancer, liver failure or other severe ailments.

The biggest barrier to treatment is cost of the anti-viral treatment drugs — which can cost from $25,000 to $50,000 for each prisoner. However, Hepatitis C progresses in stages, and not everyone who has the infection needs to be treated at once.

Hepatitis C is spread by exposure to blood or blood products. The most common ways to contract the disease are through intravenous drug use, but people also can be affected through tattooing or blood transfusions. Persons affected with Hepatitis C can suffer weakness, pain, liver cancer and bleeding from any part in the body.

Prison officials were not immediately available to comment on the suit. However, the S.C. Department of Corrections is aware of the dangers of Hepatitis C.

“We have begun to treat Hepatitis C inmates with a new drug regimen that has over a 95 per cent cure rate,” prisons director Bryan Stirling wrote in his department’s annual report last fall.

Last fiscal year, the department treated four inmates with the new drugs, Stirling said.

But that isn’t anywhere near what is needed, the lawsuit says.

The S.C. prison system’s program “will serve only 16 inmates, despite the fact that the number of infected inmates likely numbers in the thousands,” the lawsuit said.

The prison system now has a partnership with the S.C. Department of Environmental Control and the University of South Carolina Infectious Disease Program, Stirling wrote. Two doctors are on contract to work with various infectious diseases, including Hepatitis C, he wrote.

Geissler, an inmate since 2011, was diagnosed as having Hepatitis C in January 2014 after having his blood tested for an unrelated health issue. The prison system repeatedly has denied his requests for treatment, and he has exhausted “all available administrative remedies,” his lawsuit says.

Christopher Bryant, the Charleston lawyer who brought the lawsuit on Geissler’s behalf, said Tuesday the prison system’s position is that Geissler and other inmates with Hepatitis C are “not yet sick enough for treatment. This is contrary to accepted medical standard of care and unacceptable in a civilized society.”

Inmates with untreated Hepatitis C are being released when they finish their sentences, Bryant said. Outside prison, they may spread the disease. If they are tested, treated and taught about prevention inside prison, that benefits the public as a whole, Bryant said.

“Treat and educate in the prisons,” Bryant said. “It will help to slow the spread outside prisons.”

Bryant acknowledged some people may not be sympathetic to giving expensive treatment to inmates.

But inmates deserve medical treatment, he said. “If someone breaks their arm in prison, we don’t say, ‘Hey, don’t get a cast’.”

Also, he said, Geissler is not asking for an unproven experimental drug. The drugs in use to treat Hepatitis C have a nearly 100 percent cure rate, he said.

Bryant is working with lawyers in the Harpootlian law firm of Columbia, which has experience in class-action litigation, and the Guttman Buschner law firm in Washington, D.C., experienced in medical and class-action issues, in the lawsuit.

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How Progressives in Law Talk to America

By Reuben Guttman and Paul Zwier

“Originalism is a pretext to justify an ultraconservative agenda.”[2]“Textualism is pretext to discount context.” “The appointment of Judge Brett Kavanaugh to the Supreme Court is a step toward the demise of the administrative state.”

We are progressives, and these are lines that we have picked up from like-minded colleagues over the past several months. We progressives seem to find comfort in encapsulating our views in thematic phrases or conclusions; indeed, we even collect and covet new ones that come our way. How many of us have used the phrase “weaponizing the First Amendment” since Supreme Court Justice Elena Kagan coined that phrase in her Janus dissent?[3]

We as progressives seem to 1) view the current state-of-affairs in the Trump era as a crisis, or at least the dismal end of liberal democracy, 2) complain that the rule of law is in jeopardy, and 3) act bewildered that all Americans do not see things as we do.

Yet, perhaps this third point is precisely because we speak in a language of contempt that is only familiar to those in our “like-minded echo chamber.” And, even among those in the echo chamber, we wonder whether the words we use have either lost their meaning or do not adequately capture the principles they represent.

And who exactly is our audience? Are we trying to persuade Trump supporters to change their minds? Or are we trying to persuade independents who voted for Barack Obama, but then voted for Trump in frustration and anger over a number of real concerns: wage disparities, failed financial products that wreaked havoc on unwitting borrowers, the ever-increasing costs of health care and education, and/or the opioid crisis? Has our rhetoric ignored the grade school and high school classrooms where students formulate their views on the role of government without understanding the difficult relationship between liberty and equality?[4]

Of course in this Botox era of quick fix solutions, how does the complexity of our beliefs compete with simple, but completely wrong and racist, quick fixes like blaming our woes on immigrants and simply summarizing our goals in the phrase “Make America Great Again”? Our striving to learn from the messaging of those who have a different vision for the world has only confused our message.

For example, we call ourselves progressive, but what does that really mean? Does it mean that we still believe in liberal democracy —that there is room for both majority backed solutions and for liberty (that is, plenty of room for individuals to define for themselves what gives their lives meaning)? What has exactly changed in our society and its values that warrant change (progress)? What makes us want to abandon old ways in favor of new ones? While progressives favor change, it is not for change’s sake. We worry about the unintended consequences of any policy or program. We must therefore leave plenty of room in our rhetoric for balancing the interests of individuals with different needs, experiences, and perspectives. In sum, our challenge is to work toward the more perfect provision of health care, public education and protections that afford equality of opportunity; and at the same time we must also protect personal values with regard to religion, leisure time and other liberties.

Of course, the court plays a vital role in balancing between need for change and protections of liberty. The courts balance and adjust liberty and freedom of self-determination, but also of equality and justice, including a fair chance for success, for all. However, it is in an oral adversarial process of combatting narratives where the important balancing and weighing takes place. It is up to trial lawyers to convince a jury or other body, but we must first understand our audience to do so effectively.

As trial lawyers who are in the business of convincing others, we have learned the hard way that not everyone sees the world as we do, speaks our language, or attaches the same meaning to words and phrases that we use. For us, it is an occupational hazard to not be in constant exploration of how others view the world. We confess that taxi drivers, parking attendants, the person checking us in at the hotel, and those we have represented (from salaried to professional workers) are all part of our ever-expanding and continuing focus group. Though one of us dabbles in teaching law as an adjunct faculty member, and one of us is a full-time law school faculty member, our students and clients have been our teachers.

Among the members of our focus group, one of us has been thinking about the Lyft driver who shuttled him home from the airport recently. The Lyft driver is a Navy veteran who spent ten years as a bookkeeper at the Federal Bureau of Investigations (FBI) Quantico facility and has a son who is a police officer in California. With no pension to speak of and struggling to make ends meet, surely his views on the state of the nation had to be like ours. They were not. He said that President Donald Trump’s tax bill put more money in his pocket; getting along with Russia is a good thing (so why all the commotion?); most immigrants are hardworking, but people should not be sneaking across the border; and Hillary Clinton had her foibles, so why can’t the Democrats cut Trump some slack? He was and will continue to be a Trump supporter. He is one of the people that we progressives would have to win over, and yet, I wonder whether we speak in a language that is readily accessible or relatable to him.

Still the chaos and narcissism coming from the White House make for tough sailing for progressives. It is hard for some navigating between kindness, condescension, and contempt. Our tendency is to discuss what we believe a Kavanaugh court might mean. Or the unfairness of not letting Obama fill a seat on the Supreme Court during the last year of his term. Or the self-absorption of a president who shows little concern about Vladimir Putin hacking the 2016 presidential election, his own threat to rule of law in his tweets condemning Attorney General Jeff Sessions’ continuation of the Russia investigation, his removal of former FBI Director James Comey, and/or his insistence on “no collusion,” but that even if he colluded (that is, coordinated or otherwise assisted the Russians in interfering with the election), it is not a crime.[5] We want to ask, “When did a Trump voter’s support turn into support for a Manchurian candidate?” Our responses sometimes stray from concerns regarding our shared vulnerabilities, and are often unkind to the Lyft Driver and others who have graced our paths over the years. Even the legal scholars analyzing the laws that regulate us often show too little care for the public at large. And – of course it is tempting to join the politicians who see a fix in energizing their voting base, which can boil down to bestowing benefits or promoting and assuaging fears with little regard to the facts at issue.

Among these groups, it is the progressive lawyers and legal scholars who are seemingly the best hope to play the role as honest brokers who can provide understandable insight and guidance to those who cast votes. Indeed, there are many progressive scholars who do this well. But those who do so must do more than simply present the data, or show the illogic of Trump’s positions. Such arguments are too susceptible to the “what about” response (“What about Bill Clinton? He had an affair while he was in the White House.”) or to an anti-intellectualism that makes for an easy dismissal of the academic as being part of the elite. No, we as progressives must draw on all of our classical rhetorical skills in making the right case to the right audience.

Like any trial lawyer appealing to a jury in closing argument, political rhetoric that seeks to persuade the fair minded, or independent, citizen must pay attention to several principles. The first principle is credibility.[6] A trial lawyer’s job is to demonstrate credibility from the start of jury selection through the end of the trial. For the politician, it is a life-long endeavor. For the opinion writer or legal commentator, credibility can be demonstrated by modest reference to one’s careers and personal experiences with the subject matter.

The second principle is posing a balanced argument. Does the candidate recognize genuine fears and concerns that exist in the minds of the audience? What are the legitimate concerns about wealth disparity, immigration, health care, regulation, and education that need to be “heard” and restated before moving to reasonable, workable solutions based on facts? Does the argument appeal to more than one type of the authority—to the law, to economics, to predictions based in data (appropriately detailed), but also to values and common sense? Is the argument multifaceted, so if one basis is not understood, others will be offered to satisfy everyone? And does it build, like a John Oliver presentation—with more than just a one liner, or a “gotcha”—with a light touch, some humor, and a sincere suggestion for action? Does it take the time to use history, or even analogies drawn from songs, sayings, and sacred texts, to make the point?

The third principle is related to passion. Is the speaker’s passion appropriate—not too shrill, not too fast, not too loud, and not too angry? Does the argument contain tactical word emphasis and variation in tone to make it interesting and keep the audience from feeling attacked, and maintain sincerity throughout its delivery, like a skilled musician performing a difficult concerto?

The final principle involves genuine displaying respect and trust for the audience. Does the final appeal respect the intelligence of the audience by not telling the audience what to do, but by asking each one to decide from themselves to do what is right, and what they will be proud to tell their children they did, some years in the future?[7]

We call on our fellow academics to do more blogging and opinion writing. At the end of the day, it is the theorists in consultation with the practitioners who will study the chaos of the Trump administration, perhaps even coining new terms to capture what is happening. They look at individual moves and acts, but see how they are part of a bigger movement or shift in theory. Is the firing of Sessions like Nixon’s Saturday Night Massacre? Is it the move toward totalitarianism, in the name of nationalism? Is it the end of democracy in favor of a dictator? What does it mean about a person’s character, who even if caught lying cheating or stealing, or personally gaining from his office, will put himself above the law? Is it better to invoke history? Are we like Germans living in between World War I and World War II, in stifling poverty and unemployment, ready to blame Jews for the nation’s problems? If we see these conditions, we cannot stand down or escape to our regular scholarship. We must engage and use all the tools that our legal training has provided to us.

For now, the nation is in trouble. In words progressives understand, “the rule of law is in jeopardy.” With a critical Supreme Court nomination pending before the Senate and upcoming national elections slated for November, the big question is how we get more people to understand the nation’s peril. Maybe it is just time to really listen to each other and begin to speak in a common language. Despite these trying times, we must follow the advice that Ruth Bader Ginsberg’s mother gave her as a little girl, that showing anger never advances your cause. Instead, we must remember to take the time to establish our credibility and concede the human emotions that need be conceded. We need to be both balanced and precise in the words that we use. We need to be patient—our work is conversation by conversation, speech by speech, blog by blog. Don’t we need to continue to trust democracy—that rational discourse, step by step and case by case, will bend the arc of history toward justice?

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[1] Reuben Guttman practices law with Guttman, Buschner & Brooks, PLLC, is a Board Member of the American Constitution Society, and an Adjunct Professor and Senior Fellow at Emory Law School; Paul Zwier is a Professor at Emory Law School and Director of the Emory Law Center for Advocacy and Dispute Resolution.

[2] Thomas Jefferson made the case for progressives against originalism in his letter to Samuel Kercheval:

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. It is this preposterous idea which has lately deluged Europe in blood. Their monarchs, instead of wisely yielding to the gradual change of circumstances, of favoring progressive accommodation to progressive improvement, have clung to old abuses, entrenched themselves behind steady habits, and obliged their subjects to seek through blood and violence rash and ruinous innovations, which, had they been referred to the peaceful deliberations and collected wisdom of the nation, would have been put into acceptable and salutary forms. Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs.

Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816) (on file with Library of Cong.).

[3] Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting).

[4] See Arlie Russell Hochschild,Strangers in their Own Land; Anger and Mourning On the American Right, A Journey in the Heart of Our Political Divide 9 (2016). See also CNN Politics, Exit Polls, CNN (Nov. 23, 3016, 11:58 a.m.), https://www.cnn.com/election/2016/results/exit-polls (describing reasons Trump supporters provided for electing Trump).

[5] See Stephen Collinson et al., Trump Fires FBI Director James Comey, CNN (May 10, 2017, 9:44 A.M.), https://www.cnn.com/2017/05/09/politics/james-comey-fbi-trump-white-out/index.html; Philip Ewing, Trump Escalates Feud Against Jeff Sessions with New Sarcastic Tweets, NPR (Aug. 24, 2018, 11:23 A.M.), https://www.npr.org/2018/08/24/641543624/trump-escalates-feud-against-jeff-sessions-with-new-sarcastic-tweets; David Jackson, Donald Trump Says Collusion ‘Is Not a Crime,’ Insists His Campaign Did Not Collude with Russia, USA Today (July 31, 2018, 4:50 P.M.), https://www.usatoday.com/story/news/politics/2018/07/31/donald-trump-collusion-not-crime-no-collusion-russia/869821002/.

[6] See generally Aristotle, On Rhetoric: A Theory of civil Discourse (George A. Kennedy ed., Oxford Univ. Press 1991). Of course, Secretary Clinton was credible to a majority of the population, and maybe, however unfair, had lost her credibility not to a majority of voters in key states. See Gregory Kreig, It’s Official: Clinton Swamps Trump in Popular Vote, CNN (Dec. 22, 2016, 5:34 A.M.), https://www.cnn.com/2016/12/21/politics/donald-trump-hillary-clinton-popular-vote-final-count/index.html.

[7] See Aristotle, On Rhetoric : A Theory of civil Discourse (George A. Kennedy ed., Oxford Univ. Press 1991). While some might see these as tactics or strategies, we, along with Aristotle, prefer to see them as virtues. Id. These are the virtues of the citizen performing his or her duty in the public square.

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The Whistleblowers in the White House

I practice law. My clients have been called sneaks and snitches. I just call them “whistleblowers.” If they sue a culprit who has defrauded the government under the False Claims Act against, I might also call them “relators.”[2]

I try to explain to people that the term whistleblower is quintessentially American. It is about challenging accepted but fundamentally wrong practices; indeed, ones carried out by established or respected people or institutions, including corporations and government. And though the term “whistleblower” was coined around the activities of Ralph Nader in the 1960s and 1970s, whistleblowers have been around since the birth of our nation.[3] One need only consider challenges to British Rule and claims of taxation without representation to understand the importance of whistleblowing in our founding.

We talk about the “progressive tradition,” but isn’t that tradition about second-guessing rules that are just not right – rules like slavery, “separate but equal,” and a way of life that denied, and continues to deny, equal rights for women and minorities? And aren’t the folks who stick their necks out to make these challenges just good old American whistleblowers? No doubt though, until their complaint is vetted and their cause pressed to completion, they will be called snitches, even if, at the end of the day, their epitaphs herald them as heroes.

This week we learned that we have whistleblowers in the White House, some of whom cooperated with reporter Bob Woodward, and one of whom penned an Op Ed for the New York Times.[4] True to form, feathers have been ruffled in some circles and our President has called the work of the Op Ed author “TREASON?”[5] Some of these outcries were predicable; yet the cries for help from these particular “whistleblowers” were a bit surprising.

While we have laws that protect whistleblowers and legal channels for them to air their grievances, every now and then these channels are simply not viable; or perhaps, those who might be in a position to hear a complaint won’t listen or are not inclined to take action.[6] Specifically, Congress has seemingly failed to conduct aggressive oversight on issues ranging from the competence of the President to the administration’s foreign policy initiatives.[7]

Maybe this is what the whistleblowers in the White House understand; it is probably why they took their concerns to the only viable outlet: the American Press. After all, was the Republican legislature going to take up their cause?[8]

And like the wide receiver always in the clear to take a pass, the Free Press – another quintessentially American phenomenon – exists as the outlet for whistleblower when all else fails. No doubt, choosing that route comes with fewer statutory protections, but to be clear, whistleblowers working with the press have driven change for the better.[9]

I am a bit curious about these White House whistleblowers —particularly, the individual whose words appeared in the New York Times. I wonder about the phrase in the Op Ed hinting at the virtues of an agenda that specifically favors deregulation and perhaps even the appointment of judges deferential to the well-heeled and less receptive to those without a voice; maybe even judges who are less open to receiving a complaint challenging the status quo from say, for example, a whistleblower?

I wonder whether these whistleblowers in the White House have truly learned about what it feels to be the little guy taking on the system, always in search of a more powerful partner who will make the grievance heard. And also, I wonder when they leave the White House and go back to Corporate America whether they will be the ones calling my clients snitches.

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[1] Reuben Guttman practices law with Guttman, Buschner & Brooks, PLLC, and is a Senior Fellow and Adjunct Professor at Emory Law School. He is a Board Member of the American Constitution Society.

[2] See 31 U.S.C. §§ 3729-3731 (2018). Specifically, 31 U.S.C. § 3730(b) provides for “actions by private citizens” in the name of the government. Private citizens who bring these actions are known as “relators” and the caption on the complaint is styled, for example, United States ex rel Smith v. Jones Corp. The provisions of the False Claims Act that allow for private rights of action are known as the “Qui Tam” provisions. See, e.g.,31 U.S.C. § 3730(c).

[3] See William Safire, On Language; Blowing my Whistle, N.Y. Times Magazine (1983), https://www.nytimes.com/1983/02/06/magazine/on-language-blowing-my-whistle.html.

[4] See, e.g., I am Part of the Resistance Inside the Trump Administration, N.Y. Times (Sept. 5, 2018), https://www.nytimes.com/2018/09/05/opinion/trump-white-house-anonymous-resistance.html; Renae Reints, Bob Woodward’s Latest Book Reveals New Levels of Chaos in Donald Trump’s White House, Fortune(Sept. 4, 2018), http://fortune.com/2018/09/04/woodward-book-donald-trump/.

[5] See Donald J. Trump (@realDonaldJTrump), Twitter (Sept. 5, 2018, 3:15 P.M.), https://twitter.com/realdonaldtrump/status/1037464177269514240?lang=en (responding to the anonymous op ed in the New York Times).

[6] See infra, note 8. Historic examples of when government insiders have used the press because no viable internal recourse existed include Mark Felt’s (“Deep Throat”) cooperation with Bob Woodward and Carl Bernstein of the Washington Postand Daniel Ellsberg’s leaking of the Pentagon Papers. See The Most Dangerous Man in America, PBS, http://www.pbs.org/pov/mostdangerousman/timeline/ (last visited Sept. 13, 2018); The Watergate Story, Wash. Post, http://www.washingtonpost.com/wp-srv/politics/special/watergate/part1.html (last visited Sept. 13, 2018).

[7] See Kris Kolesnik, GOP Destroyed Oversight – Dems Obligated to Clean up Mess if Elected, The Hill (Sept. 11, 2018, 11:30 A.M.), http://thehill.com/opinion/campaign/405931-gop-destroyed-oversight-dems-obligated-to-clean-up-mess-if-elected.

[8] For example, any one of a number of Congressional oversight committees – if inclined – has the ability to subpoena documents and call witnesses. See generally Todd Garvey, Cong. Research Serv., Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (May 12, 2017), https://fas.org/sgp/crs/misc/RL34097.pdf. In combination with the press, these committees have immense power of persuasion. One can only harken back to the Watergate Committees to appreciate this point. See Tevi Troy, Congressional Hearings Aren’t What They Used to Be. Here’s How to Make Them Better, Wash. Post (Oct. 21, 2015), https://www.washingtonpost.com/posteverything/wp/2015/10/21/congressional-hearings-arent-what-they-used-to-be-heres-how-to-make-them-better/?noredirect=on&utm_term=.73a4fff44fae.

[9] The Occupational Safety and Health Administration allows for redress regarding retaliation provisions written into at least twenty separate federal statutes. See Occupational Safety and Health Admin., U.S. Dep’t of Labor, OSHA Fact Sheet (2013), https://www.osha.gov/OshDoc/data_General_Facts/whistleblower_rights.pdf. But the protection is for individuals who engage in protected conduct. Reporting wrongdoing to a federal agency is clearly protected conduct. What is less clear is when an individual neglects to report an issue directly to an agency and goes to the press. For example, one need only study the matter of the Pentagon Papers where Daniel Ellsberg was charged under the Espionage Act for his leaking of documents to the Washington Postand the New York Times; the charges were later dismissed because of prosecutorial misconduct. See Judge William Byrne; Ended Trial over Pentagon Papers, Wash. Post (Jan. 15, 2006), http://www.washingtonpost.com/wp-dyn/content/article/2006/01/14/AR2006011401165.html. Despite the legal perils of Mr. Ellsberg, we look back over four decades on his efforts and view his conduct as having a positive impact on the process of evaluating US involvement in the Vietnam War.