Chuck Grassley

United States Senator from Iowa

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Grassley to Attorney General: Instructions to Employees Must Include Whistleblower Guidance

Feb 06, 2018
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).).