B4 EZ BD THE WASHINGTON POST.SUNDAY, OCTOBER 20 , 2019
ing they see at work — over what she calls
“soap box” whistleblowers motivated primari-
ly by righteousness, who in her experience
rarely feel a sense of justice at the end of a
case. “People who blow the whistle defensive-
ly, or even out of spite for how colleagues have
treated them for speaking up, are often
intensely practical and realistic people who
understand the imperfections of the legal
system and make ideal clients.”
Such motivations can help sustain the
years of dogged and draining effort that
whistleblowing often requires. In 2002, Allen
Jones, an investigator at the Pennsylvania
Office of the Inspector General in Harrisburg,
discovered a massive, multistate fraud
scheme run by major pharmaceutical compa-
nies. When his superiors pressured him to
halt his investigation, citing Big Pharma’s
political clout in the state, Jones became an
undercover operative in his own office. “I was
thinking: ‘You’re the enemy. And I’m going to
prove what you’re doing, when you’re doing it
and why it’s wrong,’ ” he told me of his stance
toward some of his bosses and colleagues.
Jones eventually published his allegations on
the Internet and in interviews with major
newspapers, and helped the state of Te xas win
a legal settlement of $158 million against
Johnson & Johnson in 2012 — 1 0 years after he
uncovered the scheme. That marked the end
of the case and helped make a larger national
settlement that the Justice Department and a
team of whistleblowers concluded with John-
son & Johnson for $2.2 billion. As one
anonymous whistleblower told me of another
organization’s attacks on his motives: “They
tried to dismiss me as a disgruntled employee.
Which of course I was — who wouldn’t be
disgruntled, after everything I’d seen and
suffered at my workplace?”
One of the most successful and momentous
acts of whistleblowing in American history
may fit this pattern. Felt was the de facto
second-in-command at the FBI when the
bureau’s l ongtime head, J. Edgar Hoover, died.
Felt had seemed to be his heir apparent. But
President Richard Nixon instead chose L.
Patrick Gray to lead the bureau, a major
disappointment for Felt, according to report-
ing by Bob Woodward. Surely Felt was also
alarmed by Nixon’s c rimes and his attempts t o
control the FBI, but it’s i mpossible to discount
the likelihood that his frustration impelled
him to become Deep Throat, the anonymous
source to Washington Post reporters Wood-
ward and Carl Bernstein. That choice helped
bring down Nixon and his Watergate co-con-
spirators. Had Nixon promoted Felt, what
might history have looked like?
Twitter: @tommuellerXTom Mueller is the author of “Crisis of
Conscience: Whistleblowing in an Age of Fr aud.”than $60 billion in ill-gotten tax dollars and
the deterrence of an estimated $1 trillion in
further fraud.
Whistleblowers’ sense of outrage, anger or
vindictiveness can drive them to make their
disclosures. Mary Inman, the London-based
head of the international whistleblower prac-
tice at the international law firm Constantine
Cannon, observes that more than half her
clients had been fired before they approached
her, and others suffered career setbacks or
workplace reprisal for raising concerns inter-
nally. “Most whistleblowers make their life-
changing decision to act from a complex
mixture of raw emotions — fear, indignation,
righteousness, desire for vengeance after
having been silenced or maligned,” she says.
“The fact that they were mistreated can
definitely become a tipping point for them,
the animus that drives them finally to report
the wrongdoing t hey’ve sat on for a long time.”
Inman says she prefers working with the
more pragmatic whistleblowers — whose
range of emotions often includes fear of being
swept up in a criminal probe of the wrongdo-correction of illegal and improper conduct is
just as well served by an allegation which
proves on investigation to be accurate, but
which was made purely out of spite, malice or
revenge.” Brown promotes the view of whis-
tleblowing as a “quiet” or “everyday” kind of
heroism, a facet of simply doing one’s job
properly.
In the United States, lawmakers have ar-
gued that negative intent can be a crucial tool
in uncovering malfeasance. “Setting a rogue
to catch a rogue,” wrote Sen. Jacob M.
Howard, who authored the False Claims Act
during the Civil War, “is the safest and most
expeditious way I have ever discovered of
bringing rogues to justice.” Since its passage
in 1863, that statute has become an effective
tool to fight corporate fraud, since it enables
individuals with evidence of wrongdoing
against the federal government to bring suit
against corporate offenders or individuals on
behalf of the American people, even when the
Justice Department decides not to intervene,
and to collect a bounty if they win. The False
Claims Act has led to the recovery of moreP
resident Trump and his loyalists
have not yet succeeded in outing the
whistleblower whose complaint in
August said that the president
abused his authority by pressing
Ukrainian President Volodymyr Zelensky to
investigate his political enemies. But he and
his allies seem certain that the whistleblow-
er’s motives are impure. They’ve branded the
whistleblower a spy, a traitor and a political
operative. “The whistleblower is a Democrat
— s trong Democrat — a nd is working w ith one
of my opponents, as a Democrat, that I might
end up running against,” Trump said Oct. 9.
“The whole thing is a scam. It’s a fix.” Former
CIA case officer Robert Baer suggested recent-
ly that the whistleblower was part of “a palace
coup against Trump,” as payback for his
mistreatment of the intelligence community.
Political combatants love to theorize about
why someone comes forward. From Water-
gate to CIA torture, critics denounce “ disgrun-
tled employees,” “ loose cannons” and “spies,”
insinuating that whistleblowers’ resentment
of their organizations discredits their claims.
Conversely, allies tend to elevate whistle-
blowers to the status of heroes. Liberal and
conservative Trump critics have applauded
the CIA operative to legitimize his revelations.
House Intelligence Committee Chairman
Adam B. Schiff (D-Calif.) said Oct. 6, after a
second Ukraine whistleblower came forward,
“We hope others will follow their courageous
example.”
Both demonizing and canonizing whistle-
blowers are pointless exercises. As a matter of
law, a whistleblower’s motivations are irrel-
evant. People who come forward to expose
injustice and abuse of power often have
deeply personal reasons: ideological disagree-
ments, personal vendettas, career frustra-
tions. W. Mark Felt, the FBI official who
became “Deep Throat,” had recently been
passed over for the bureau’s top job. The
protections afforded by our laws to people like
him don’t discriminate based on intent. A
whistleblower’s putative desire for vengeance
against his employer or colleagues is no more
relevant to the strength of his charges than his
putative altruism. Only the facts matter — in
this case the accusations in the Ukraine
whistleblower’s nine-page complaint, whose
validity Congress must weigh.
There is a danger in our desire to cast
whistleblowers in the heroic mold. It imposes
unrealistic demands for purity on all aspects
of their lives and can deter people who don’t
feel particularly pure or heroic from blowing
the whistle, according to A.J. Brown, a profes-
sor at Griffith University Business School in
Australia and an international authority on
whistleblowing and public integrity. Aus-
tralia’s Parliament put it well in a 1994 report:
“The public interest in the exposure andConstitution as the exigency may suggest and
prudence justify.” Trump’s telephone call with
the Ukrainian president would seem to sug-
gest a clear abuse of power and possibly a
campaign finance violation, although we will
need a fair and impartial inquiry to confirm
this. As Hamilton wrote, “Caution and investi-
gation are a necessary armor against error and
imposition.”
Knowing that impeachment would be divi-
sive, arousing violent party agitation, Hamil-
ton never wanted it used lightly or capricious-
ly, but neither did he want it relegated to mere
window-dressing. It was a tool intended for
use as conditions warranted. “If there be no
penalty annexed to disobedience, the resolu-
tions or commands which pretend to be laws
will, in fact, amount to nothing more than
advice or recommendation,” he wrote. For
Hamilton, each branch of government re-
quired a mechanism to check encroachment
by the others. He discerned a perfect symme-
try between the president’s veto over legisla-
tion, constraining congressional overreach,
and presidential impeachment, curbing exec-
utive excess. In h is notes for the New York state
convention to ratify the Constitution, he jotted
down: “Legislative in the Congress, yet
checked by negative of the Executive. Execu-
tive in the President, yet checked by impeach-
ment of Congress.”
Throughout his “Federalist” essays, Hamil-
ton foresaw impeachment as a possible two-
step process and noted multiple times that
after removal from office, an impeached presi-
dent would “be liable to prosecution and
punishment in the ordinary course of law.” He
was adamant that the Senate should hold a
trial, with the chief justice presiding, and
pointed out that other Supreme Court justices
should be excluded in case the ousted presi-
dent then became a defendant for his mis-
deeds in the regular court system.
Our constitutional system, with its separa-
tion of powers, is an exquisitely calibrated
mechanism. James Madison, one of Hamil-
ton’s “Federalist” co-authors, noted that no
single branch of government “can pretend to
an exclusive or superior right of settling the
boundaries between their respective powers.”
But that is exactly what the president is doing
by trying to shut down Congress’s powers of
executive oversight.
In the last analysis, democracy isn’t just a
set of institutions or shared principles, but a
culture of mutual respect and civility. People
must be willing to play by the rules or the
best-crafted system becomes null and void, a
travesty of its former self. We are now seeing
on a daily basis presidential behavior that
would have been unimaginable during more
than two centuries of the American experi-
ment. Not only is Trump himself on trial, but
he is also testing our constitutional system to
the breaking point. In his worst imaginings,
however, Hamilton anticipated — at least in its
general outline — the chaos and demagoguery
now on display in Washington. He also helped
design and defend the remedy: impeachment.Ron Chernow is the author of biographies of
Alexander Hamilton, George Washington and, most
recently, Ulysses S. Grant.In d efending impeachment in two “Federal-
ist” e ssays, one might have expected Hamilton
to engage in close textual analysis, parsing the
exact meaning of “Treason, Bribery, or other
high Crimes and Misdemeanors.” Instead he
couched his defense in broad political lan-
guage, stating that impeachment should “pro-
ceed from the misconduct of public men, or, in
other words, from the abuse or violation of
some public trust.” In short, the president
didn’t need to commit a crime per se. “If the
federal government should overpass the just
bounds of its authority and make a tyrannical
use of its powers,” t he people must “take such
measures to redress the injury done to theseeking “to gain an improper ascendant in our
councils. How could they better gratify this,
than by raising a creature of their own to the
chief magistracy of the Union?” He prophesied
that competing countries would try to clip the
wings by which America “might soar to a
dangerous greatness.” That Trump was so
cavalier about Russian meddling in the 2016
election and then invited Ukraine to furnish
defamatory material about his political rival
Joe Biden would have shocked Hamilton and
the other founders, all of whom were wary of
“the insidious wiles of foreign influence,” as
George Washington phrased it in his farewell
address.who would counter the fickle views of the
electorate with reasoned judgments. He
hoped that members of the electoral college,
then expected to exercise independent judg-
ment, would select “characters preeminent for
ability and virtue.”
From the outset, Hamilton feared an unholy
trinity of traits in a future president — ambi-
tion, avarice and vanity. “When avarice takes
the lead in a State, it is commonly the forerun-
ner of its fall,” he wrote as early as the
Revolutionary War. He dreaded most the
advent of a populist demagogue who would
profess friendship for the people and pander
to their prejudices while secretly betraying
them. Such a false prophet would foment
political frenzy and try to feed off the confu-
sion.
So haunted was Hamilton by this specter
that he conjured it up in “The Federalist” No. 1,
warning that “a dangerous ambition more
often lurks behind the specious mask of zeal
for the rights of the people than under the
forbidden appearance of zeal for the firmness
and efficiency of government. History will
teach us that... of those men who have
overturned the liberties of republics, the great-
est number have begun their career by paying
an obsequious court to the people; commenc-
ing demagogues, and ending tyrants.”
Throughout history, d espots have tended to
be silent, crafty and secretive. Hamilton was
more concerned with noisy, flamboyant fig-
ures, who would throw dust in voters’ eyes and
veil their sinister designs behind it. These
connoisseurs of chaos would employ a con-
stant barrage of verbiage to cloud issues and
blur moral lines. Such hobgoblins of Hamil-
ton’s i magination bear an eerie resemblance to
the current occupant of the White House, with
his tweets, double talk and inflammatory
rhetoric at rallies.
While under siege from opponents as treas-
ury secretary, Hamilton sketched out the type
of charlatan who would most threaten the
republic: “When a man unprincipled in pri-
vate life[,] desperate in his fortune, bold in his
temper... despotic in his ordinary de-
meanour — known to have scoffed in private at
the principles of liberty — when such a man is
seen to mount the hobby horse of popularity —
to join in the cry of danger to liberty — to take
every opportunity of embarrassing the Gener-
al Government & bringing it under suspicion
— to flatter and fall in with all the non sense of
the zealots of the day — It may justly be
suspected that his object is to throw things
into confusion that he may ‘ride the storm and
direct the whirlwind.’ ” Given the way Trump
has broadcast suspicions about the CIA, the
FBI, the diplomatic corps, senior civil servants
and the “deep state,” Hamilton’s warning
about those who would seek to discredit the
government as prelude to a possible autocracy
seems prophetic.
At the time of the Constitutional Conven-
tion, foreign powers, notably Britain and
Spain, still hovered on America’s borders,
generating fear of foreign interventions in our
elections. Hamilton supported the electoral
college as a way to forestall these nations fromHAMILTON FROM B1Impeachment is not just a constitutional curio. It’s a power meant to be used.
The law doesn’t care about whistleblowers’ grudges
JAMES K. W. ATHERTON/THE WASHINGTON POSTFear and anger
are common
motivations,
says scholar
Tom MuellerW. Mark Felt,
pictured in 197 5,
became a
whistleblower —
the anonymous
source known as
“Deep Throat” in
The Washington
Post’s Watergate
coverage — after
being passed over
for the top job at
the FBI.NORTH WIND PICTURES/AP IMAGESA hand-colored
engraving of a
painting of
Alexander
Hamilton. He wrote
the essays in “The
Federalist” on
impeachment.