A bicameral group of senior lawmakers is calling for an immediate review of reported reprisal against investigators who raised concern about the Hunter Biden investigation. In a letter to the Office of Special Counsel, Senate Permanent Subcommittee on Investigations Ranking Member Ron Johnson (R-Wis.), cofounder of the Senate Whistleblower Protection Caucus, and Senate Budget Committee Ranking Member Chuck Grassley (R-Iowa), along with House Ways and Means Committee Chairman Jason Smith (R-Mo.), House Oversight and Accountability Committee Chairman James Comer (R-Ky.) and House Judiciary Committee Chairman Jim Jordan (R-Ohio), outlined the rights and protections provided to whistleblowers under the law.
Two IRS whistleblowers and their investigative team were removed from the Hunter Biden investigation in apparent retaliation for their legally protected communications with Congress. In emails following their disclosures, senior managers failed to properly notify employees of their rights to report wrongdoing to Congress and executive branch authorities.
“The importance of protecting whistleblowers from unlawful retaliation and informing whistleblowers about their rights under the law cannot be understated. After all, it is the law,” the lawmakers wrote.
Federal anti-gag provisions prohibit the use of taxpayer dollars to prevent government employees from communicating with Congress or reporting wrongdoing to specific federal agencies. Any effort to enforce a nondisclosure policy that fails to include a disclaimer of whistleblower rights is against the law.
The lawmakers’ letter to the Office of Special Counsel can be found here and below:
July 5, 2023
VIA ELECTRONIC TRANSMISSION
The Honorable Henry J. Kerner
Special Counsel
Office of the Special Counsel
Dear Special Counsel Kerner:
The Department of Justice (DOJ) and Internal Revenue Service (IRS) have reportedly engaged in unlawful whistleblower retaliation against veteran IRS employees.[1] Multiple news reports indicate that the whistleblower and the investigative team were removed from the Hunter Biden investigation by the IRS at DOJ’s request as retaliation for making protected whistleblower disclosures to Congress.[2] We are also aware that in response to these disclosures, Acting Special Agent in Charge (ASAC) Kareem Carter sent an email to supervisors, including to the whistleblower, stating that no information involving the investigation can leave the field office without first going through the chain of command directive by seeking approval from a supervisor.[3]
This email failed to include the anti-gag provision as required by 5 U.S.C. § 2302(b)(13), as well as included in the Consolidated Appropriations Act.[4] The anti-gag provision prohibits the use of appropriated funds and the enforcement of a nondisclosure agreement or other restrictive policy, form, or agreement that does not specifically allow for lawful, protected disclosures and that each policy, form, or agreement must use specific language apprising the employee of their rights to make such disclosures.[5] Specifically, the anti-gag provision prohibits the use of government funds to implement or enforce any nondisclosure policy, form, or agreement if it 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 or the Office of Special Counsel 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.[6]
In addition, we have been made aware of an IRS email transmitted by Deputy IRS Commissioner for Services and Enforcement, Doug O’Donnell, to IRS employees regarding the lawful reporting of allegations of wrongdoing and protected whistleblower disclosures. In this email, the Deputy Commissioner states that he is writing because of concerns related to the reporting of allegations of wrongdoing and the lawful reporting of misconduct under 26 U.S.C. § 6103. While the email states the “IRS is deeply committed to protecting the role of whistleblowers,” it fails to inform IRS employees of their Constitutional and statutory right to make protected disclosures to Congress.
Under 26 U.S.C. § 6103(f)(5), IRS employees have the right to make lawful disclosures to Congress if they believe a tax return or return information “may relate to possible misconduct, maladministration, or taxpayer abuse.”[7] However, the Deputy Commissioner’s email states IRS employees may make disclosers to a supervisor, management, the DOJ Office of the Inspector General, or the Treasury Inspector General for Tax Administration but blatantly fails to provide that IRS employees have the right to make lawful disclosures to Congress. This is another example of the IRS seeking to chill whistleblowers from reporting wrongdoing to Congress.
The importance of protecting whistleblowers from unlawful retaliation and informing whistleblowers about their rights under the law cannot be understated. After all, it is the law. Accordingly, we request that you immediately investigate all allegations of retaliation against these IRS whistleblowers and all violations related to the IRS’s failure to include the anti-gag provision as required by law. In addition, we request that you immediately seek the appropriate disciplinary actions against all who engaged in unlawful conduct against these whistleblowers. The DOJ and IRS must be held accountable for all instances of whistleblower retaliation and misconduct, and federal agencies cannot conceal their wrongdoing behind illegal nondisclosure directives and related documents.
Given the importance of these matters, please schedule a briefing to discuss the steps you have taken with respect to our requests no later than July x, 2023. Thank you for your prompt attention to this matter.
