Government Watchdogs Request Investigation into Spicer's Comments on State Dissent Memo

Two good government groups, Citizens for Responsibility and Ethics in Washington and the Government Accountability Project, have written to the Office of Special Counsel requesting an investigation into White House Press Secretary Sean Spicer's comments on the draft State Department dissent memo regarding the President's executive order banning refugees and immigrants from seven majority-Muslim countries from entering the United States. Spicer stated that those who signed the letter "should either get with the program or they can go."

The text of CREW and GAP's letter is available below.

1612 K Street, NW, #1100

Washington, DC 20006

January 31, 2017

Honorable Carolyn Lerner

Special Counsel

U.S. Office of Special Counsel

1730 M Street, NW, suite 300

Washington, DC 20036

We are writing to request an investigation of potentially threatening statements made by White House Press Secretary Sean Spicer yesterday against federal government employees for questioning President Trump’s immigration executive order. These comments should not have been made without consulting with the President, to reflect his views and intended actions as well.

At the January 30, 2017 White House press briefing, Spicer was discussing a memorandum submitted by State Department employees in the Department’s “dissent channel” expressing disagreement with the executive order. The memorandum can be found at https://www.lawfareblog.com/quick-thoughts-sally-yates-unpersuasive-statement.

Mr. Spicer stated: “These career bureaucrats have a problem with it? They should either get with the program or they can go. The president has a very clear vision. He’s been clear on it since the campaign, he’s been clear on it since taking office — that he’s going to put the country first. If somebody has a problem with that agenda, that does call into question whether or not they should continue in that post.” https://www.nytimes.com/2017/01/31/us/politics/sean-spicer-state-dept-travel-ban.html.

We request this investigation under your sua sponte authority to challenge merit system violations. We are particularly concerned that the press secretary’s broadside attack could threaten a pattern and practice of prohibited personnel practices, which you have authority to investigate in the absence of a complaint.

There is clear legal basis for you to act against public threats that are incompatible with the Whistleblower Protection Act. First, the WPA’s rights apply to civil service employees in the competitive service. Foreign Service officers and other career employees who signed the letter are covered under 5 USC 2302(a)(2)(B).

Second, the merit system bars violations by those with authority to take or recommend personnel actions. 5 USC 2302(b) As White House Press Secretary, Mr. Spicer was speaking for the President, who to put it mildly has that authority. An OSC investigation should examine whether others made inappropriate recommendations to the President and, if so, seek accountabilty for any who acted improperly.

Third, the WPA makes it equally illegal to threaten a personnel action as to implement it. 5 USC 2302(b)(8) Indeed, threats can be more destructive for the public interest, because they seek prior restraint to lock in secrecy and sustain public ignorance.

Fourth, our review of concerns by the State Department dissenters indicates they clearly have engaged in speech covered by the Whistleblower Protection Act, which shields disclosures that employees reasonably believe evidence illegality, gross waste, gross mismanagement, abuse of authority or a substantial and specific danger to public health or safety. While policy dissent in isolation is not protected, the Whistleblower Protection Enhancement Act of 2012 explicitly shields disclosures of what employees reasonably believe are consequences of policies that result in abuse, danger or the other protected speech categories. The dissenters disclosed concerns consistent with widespread expert commentary for the following consequences --

• gross mismanagement and a substantial and specific danger to public health or safety by undermining anti-terrorism intelligence;
• gross mismanagement and substantial and specific danger to public health or safety by increasing radical hostility toward Americans abroad;
• substantial and specific danger to public health or safety for refugees globally who may be imprisoned or killed because the U.S. has rejected refugee status for them; and
• gross mismanagement by threatening international commerce that draws literally hundreds of billions of dollars of revenue into our nation.

The potential threats also border on violations of the Whistleblower Protection Enhancement Act’s anti-gag provision. 5 ISC 2302(b)(13) It would be illegal for the Administration to take any actions that elevate Mr. Spicer’s statements into formal policy. Since 2012 the Office of Special Counsel has effectively, aggressively enforced that reform. The anti-gag provisions may become the law’s most important shield for government accountability, in light of Mr. Spicer’s comments and last week’s nondisclosure policies issued at five agencies.

The threats also appear to violate State Department agency regulations for employees to blow the whistle through institutional channels, instead of resorting to media leaks when they disagree. 2 FAM 071.1(b) provides that “The Dissent Channel was created to allow its users the opportunity to bring dissenting or alternative views on substantive foreign policy issues, when such views cannot be communicated in a full and timely manner through regular operating channels or procedures, to the attention of the Secretary of State and other senior State Department officials in a manner which protects the author from any penalty, reprisal, or recrimination.” As 2 FAM 075.1(a) provides, in relevant part, that “You may use the Dissent Channel without fear of pressure or penalty. Discouragement of, or penalties for use of, the Dissent Channel are impermissible.” That policy cannot coexist with invitations for those who disagree to leave government.

Thank you for your attention to this matter.

Sincerely,

Ambassador (ret.) Norman L. Eisen

Chairman of the Board

Citizens for Responsibility and Ethics in Washington

Thomas Devine

Legal Director

Government Accountability Project