This Week in Whistleblower History: The First Whistleblower Protection Law
This week marks the eighth year in a row that Congress has designated July 30th National Whistleblower Day, honoring the occasion, on July 30, 1778, when the Continental Congress unanimously enacted the first whistleblower protection law in the United States. The celebration this year is particularly poignant in light of the recent mistreatment of government whistleblowers, notably Lt. Colonel Alexander Vindman.
The Whistleblower Protection Act of 1778
The first whistleblower protection law was passed in response to a petition submitted in February 1777 by a group of ten American sailors and marines to the Continental Congress, who risked their military careers by filing a whistleblower complaint against their commanding officer, Commodore Esek Hopkins.
The servicemen reported to Congress that Commodore Hopkins had engaged in “such crimes as render[ed] him quite unfit for the publick department he now occupies.” These crimes included torturing British prisoners of war, failing to destroy a British frigate that had run aground, and repeatedly speaking ill of the Continental Congress. The men declared that they were “ready to hazard everything that is dear, and if necessary, sacrifice our lives for the welfare of our country.” But they were not willing to continue serving under Hopkins.
After conducting an investigation, Congress suspended Hopkins from his post. He then retaliated against the whistleblowers by filing a criminal libel suit against them. Two of whistleblowers, naval officers Samuel Shaw and Richard Marven, were jailed.,
In a second petition read to Congress on July 23, 1778, Shaw and Marven pleaded that they had been “arrested for doing what they then believed and still believe was nothing but their duty.” Congress agreed. To remedy the wrong against Shaw and Marven, and to encourage other whistleblowers to come forward, Congress passed a law that created a legal duty on the part of “all persons” to report fraud and corruption in the government:
Resolved, that it is the duty of all persons of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds, or misdemeanors committed by any persons in the service of these States, which may come to their knowledge.
The Continental Congress also authorized money for Shaw and Marven’s legal defense. With the help of their attorneys, Shaw and Marven prevailed in the libel suit and were freed.
Senator Grassley’s Speech at National Whistleblower Day
At this year’s National Whistleblower Appreciation Day, U.S Senator Chuck Grassley, the champion of the False Claims Act, likened the early actions of the Continental Congress to protect whistleblowers during a time of war to the legislative actions needed today, during the Covid-19 pandemic.
In his speech, Senator Grassley stated that, as during the Revolutionary War, “Congress and the American people depend on whistleblowers to tell us about wrongdoing.” If anything, today “we depend on them more” because “as the government gets bigger, the potential for fraud and abuse gets bigger.” But “[s]o does “the potential for cruel retaliation against the nation’s brave truth-tellers.”
Senator Grassley’s prescription is to mimic the actions of the Continental Congress back in 1778: enact laws that “encourage, support and protect whistleblowers.” This will help send a clear message to whistleblowers that “they are patriots, and that Congress and the American people have their backs.”
In his speech, Senator Grassley identifies several of his current legislative initiatives that are meant to fill “critical void[s] in our current whistleblower laws.”
These initiatives include: (1) amendments to the False Claims Act to require the Department of Justice to state legitimate reasons for deciding not to pursue serious allegations of fraud against the government, and give whistleblowers a chance to be heard; (2) the Whistleblower Programs Improvement Act, which will strengthen protections for SEC and CFTC whistleblowers; (3) legislation to protect law enforcement whistleblowers who report violations of Constitutional rights of American citizens; and (4) legislation to protect private sector whistleblowers who report violations of anti-trust laws.
Senator Grassley’s legislative proposals, if enacted, will further the best of the American tradition started by the Continental Congress back in July 1778 when it took steps to protect the sailors who spoke out about the criminal conduct of their commanding officer.
Senator Grassley’s Silence Regarding the Mistreatment of Lt. Colonel Vindman
Unfortunately, Senator Grassley’s credibility has suffered because of his failure to speak out about President Trump’s retaliatory actions against Lt. Colonel Alexander S. Vindman, a decorated Iraqi war veteran who served on the National Security Council staff.
As an expert on Ukrainian affairs, Colonel Vindman was present during the July 25, 2019 phone call between President Trump and Ukrainian President Volodymyr Zelenskiy that was the foundation of a whistleblower complaint alleging that Trump held up military aid for Ukraine to pressure Zelenskiy to investigate Trump’s political rival. Colonel Vindman testified pursuant to a subpoena in the House impeachment proceedings that it was improper for President Trump to have coerced Ukraine to investigate political opponents.
After Trump was acquitted in the U.S. Senate, President Trump removed Colonel Vindman from the National Security Council. Vindman was unceremoniously marched out of the White House by security guards. Subsequently, Vindman’s otherwise routine promotion to the rank of full colonel was stalled.
Like the American naval officers Samuel Shaw and Richard Marven more than two-hundred and forty years ago who were willing to “hazard everything” that was dear to them for the sake of their country but were unwilling to continue serving under Commodore Hopkins, Colonel Vindman chose to retire from the U.S. Army rather than continue serving under President Trump as his Commander in Chief.
Constantine Cannon honors the courage of whistleblowers like Colonel Vindman who, in the best tradition of American patriotism, act on their duty to report fraud and corruption. If you are a whistleblower with information that you would like to report, please contact us.
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