3 ways Trump may be clearing a path for whistleblowers
President Trump’s vision of a streamlined executive branch, remade in his image and tailored to his whims, is alarming. He seems intent on dismantling the guardrails long in place to keep our leaders in check, and hobbling the agencies that are critical to our health and financial well-being.
But an unintended consequence emerging from Trump’s imperious leanings is an opening for whistleblowers to fill the breach. There are three reasons why.
First, there is strong bipartisan support for whistleblowers supplementing the government’s limited resources to combat fraud and misconduct. Starting with the False Claims Act — enacted during the Civil War to enlist whistleblowers to go after war profiteers defrauding the Union Army — America has a long history of relying on whistleblowers to uncover misbehavior that would otherwise remain undetected by government enforcers.
The role whistleblowers have played in policing unlawful activity has only gotten stronger in recent years, with Congress passing a slew of legislation providing whistleblowers with significant financial incentives to lend a helping hand to numerous agencies — the SEC (securities fraud), the Commodity Futures Trading Commission (commodities fraud), the IRS (tax fraud), National Highway Traffic Safety Administration (auto safety), Financial Crimes Enforcement Network (money laundering) and Office of Foreign Assets Control (sanctions violations).
The importance of whistleblowers is one of the few issues on which Republicans and Democrats have long agreed. The broad recognition of the vital role of whistleblowers, and the need for them to provide a regulatory assist, will only deepen with the agency purge that the administration is pursuing.
Second, Trump — who has never shied away from using whistleblowers to further his agenda — has presaged a prominent place for whistleblowers in his current political playbook. Indeed, Trump’s recent executive order to further his crusade against diversity, equity and inclusion policies expressly contemplates using the False Claims Act to keep companies in line. Not only does the order bar government contractors from any DEI initiatives, it makes compliance “material to the government’s payment decision.” This is a direct nod to the “materiality” requirement for proving False Claims Act liability, often the biggest challenge whistleblowers face in bringing successful cases under the statute.
Notably, the False Claims Act program had some of its most successful years during the first Trump administration, with roughly $12 billion in total recoveries, $1.6 billion in whistleblower awards and 3,360 new cases filed over that four-year period. All this strongly suggests Trump’s continued backing of the False Claims Act in his second term, a prospect that new Attorney General Pam Bondi specifically affirmed at her confirmation hearings.
Third, Trump no doubt has had countless run-ins with whistleblowers over the years. But he has never shown any kind of inherent hostility towards whistleblowing or the concept of speaking truth to power. Just the opposite, in fact — the driving force of his political persona is to stand up for what he sees as the truth against a rigged status quo. While we may vigorously disagree with that truth, his battle against the so-called “deep state” and what he sees as its dark forces aligns with the whistleblower mindset of standing strong in the face of fraud and wrongdoing.
Trump’s continued political and social sway and the broad communal reach of his fight-the-system messaging gives license to would-be whistleblowers to step forward against the establishment, no matter how formidable and entrenched those forces may be.
This may go a long way in fostering a more whistleblower-friendly environment, encouraging more whistleblowers to come forward and tempering the hostility and retaliation so many face when they do. So while Trump is tearing down some institutions designed to check his unprecedented executive overreach, he may be easing the way for whistleblowers to step into the void.
Like most whistleblowers, such people are likely to do so not because of some intrinsic quality or temperament that drives them to speak out. Rather, it will be about mere happenstance. I have seen this in my own practice again and again. The most unlikely individuals step up and push back simply because they were in the room where something outrageous happened. Whistleblowers are made, not born.
Trump has seen this firsthand, with a string of former colleagues and confidants who turned whistleblower because they were in the room where some of his personal, business and political misadventures happened. Which brings us to the ultimate irony of the Trump-whistleblower dynamic: In clearing the path for whistleblowers, Trump may be inviting the undoing of his own grand plans by emboldening those in the room to stand up and get in the way.
Gordon Schnell is a partner at Constantine Cannon specializing in the representation of whistleblowers.
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