Elon Musk is using the whistleblower playbook

As a former Justice Department lawyer and whistleblower, I recognize the bizarre and retaliatory techniques currently being wielded against public servants. The over-the-top tactics that Donald Trump and Elon Musk are using — placing people on administrative leave without due process, leaning on career civil servants to resign,  locking people out of offices, accusing them of “complete and utter incompetence” despite years of unblemished federal service — are very familiar to most federal whistleblowers. I was one of them and now defend these employees for a living.

I got into this line of work because, when I blew the whistle on America’s first high-profile terrorism prosecution after 9/11, the government unleashed the full force of the entire executive branch against me — much of it over the top. Among other things, the Justice Department placed me under criminal investigation, though I was never told the reason (leaking unclassified information to the press is not a crime, and government whistleblowers are protected by law.)  Then it got even stranger. Based on a secret report I was not allowed to see, the Justice Department referred me for discipline to the state bar associations where I was licensed to practice law. The state bars didn’t know how to respond, so they kept me (and my livelihood) in licensing limbo for years. But then the government's improvised retaliation hit warp speed when it put me on part of the “No-Fly List,” a terrorism watchlist that impeded my travel for years and had no redress mechanism. I thought things could get no worse than this Kafkaesque blackhole.

I was wrong. The government literally called the private law firm where I next worked and told them I could not be trusted. The Justice Department leaned on the firm to fire me, but they couldn’t do so under the Whistleblower Protection Act. Instead, the firm placed me on indefinite administrative leave, which was paid for a while . . . until it was not. I sought unemployment benefits, a system I had paid into as a taxpayer since I was sixteen, but then the government leaned on my former employer to contest those meager unemployment benefits, which it obediently did. This forced me to hire an employment lawyer, an added expense at a time. I had no income and was pregnant with my third child. I eventually won, but the damage was already done to me and my young family.

Eventually, the criminal case was dropped without any criminal charges filed It took the Maryland State Bar Association three years to dismiss the case against me as unfounded. In further theater of the absurd, I was elected to (and served on) the D.C. Bar Legal Ethics Committee from 2005 to 2007, despite the fact that the D.C. Bar charges against me were still pending at the time. The D.C. Bar charges remained a Sword of Damocles over my head for ten years before they were also dismissed.

I now represent government whistleblowers who are facing similar retaliation. It is as though Musk and his cabal at the newly created Department of Government Efficiency have picked up a whistleblower retaliator’s playbook and are using it against the entire federal civil service.

My government whistleblower clients have been suffering these same retaliatory tactics that are notoriously difficult to challenge in court, yet are almost impossible to live with. My clients have been unceremoniously banned from their workspaces or locked out of their email accounts; their telework arrangements have been suddenly and unpredictability changed; they have been told their well-documented disabilities are imaginary and denied reasonable accommodations (one client was disciplined because her wheelchair was deemed a “tripping hazard”); they have been subjected to micro-management of their every move (including trips to the bathroom) despite years of successful work; they have been reassigned to meaningless and degrading "paper cup-stacking" roles; they have been told not to discuss projects that were once centerpieces of their jobs; they have been given personally insulting letters of reprimand, censure, or undefined discipline; they have been subjected to baseless or pretextual investigations; they have been placed on administrative leave for undefined amounts of time in unclear pay statuses; and they have been eventually fired.

On Wednesday, a federal judge ruled that the Trump administration can carry out, for now, the controversial “fork in road” mass buyout program. The mass “deferred resignation” offer is a blunt instrument Musk used to drastically cut the workforce of Twitter after he was forced to purchase the social media site, now named X, in 2022.

But the stigma doesn’t end when the job does. Even after an employee resigns or is forced out, often personnel files with inaccurate, negative information remain behind, which makes it impossible to get another job at the same agency, or in the government at large. Years after they were vindicated, “Insider Threat Programs" vilified lawful whistleblowers like former NSA senior executive  Thomas Drake by putting their images on “WANTED”-style posters alongside actual spies and terrorists. Even more insidious, agencies in past crackdowns have issued McCarthyesque edicts that employees must report on suspected colleagues engaged in suspicious work activity like “displaying questionable loyalty to the U.S. Government." 

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Co-opting the insider threat model, DOGE has ordered federal workers to report on anyone resisting the sweeping and legally dubious changes. Whistleblowers have been told not to speak to colleagues, lawmakers or the press (all of which are communications protected by the First Amendment), much like federal agencies have now been instructed to shutter all internal oversight offices and halt all external communications. 

In the face of this retaliation and humiliation, whistleblower clients have struggled with anxiety, depression, ulcers, and migraines brought on by stress, and exacerbation of auto-immune and heart disease, among countless other health and personal consequences. A number have been left bankrupt and broken, unemployed and unemployable. Now thousands of civil servants and their families will be dealing with similar consequences in a culture of fear, cruelty and uncertainty. 

The improper, illegal and heavy-handed methods Trump is using — placing career employees in professional purgatory, denying them notice or an opportunity to respond, restricting access to their offices, personally denigrating them, and cutting off their recourse — from the mass firing of some 20 Inspectors General to purging career officials from the nation’s top law enforcement agency — is not new territory. History has not forgotten Senator Joseph McCarthy’s list of alleged Communists in the State Department and his use of unfair and evidence-free accusations of disloyalty and subversion in order to suppress opposition. His name now lives in ignominy as both a noun and an adjective used to describe such political witch hunts. Nor has history forgotten the “Saturday Night Massacre,” when an embattled President Nixon fired the U.S. Attorney General and Deputy Attorney General from the Justice Department, contributing to a chain of events that eventually led to his resignation. What is new is the vast scale and record speed with which it is occurring, the neutering of government watchdog agencies and oversight mechanisms, and radio silence from the controlling party in Congress. 

It is despicable when agency supervisors engage in draconian retaliation toward whistleblowers who are trying to improve government by exposing fraud, waste and abuse. It is an order of magnitude worse that the Trump administration has imposed these tactics on an entire federal workforce of dedicated career civil servants who actually care about their country.