Whistleblowing as Civil Disobedience: Leaks in the Era of Trump and the Deep State

From the pages of HA: The Journal of the Hannah Arendt Center, vol. VII
By Allison Stanger

            I want to begin by introducing my interlocutor, Professor David Bromwich, who is not listed on your program. He is Sterling Professor at Yale University, a frequent contributor to the New York Review of Books, enormously intelligent, and erudite, and I feel fortunate to be sharing a stage with him.

            I am keenly aware that I am standing between you and wine and cheese, and I am also following a fantastic panel of students. What I’d like to do is very quickly sketch an argument that will give you a taste of my forthcoming book on whistleblowing in America. My aim is to generate a good discussion, both with David and then with you. I will leave plenty of time for your questions.

            My book Whistleblowers: Honesty in America from Washington to Trump will be published by Yale University Press in 2019. I’m happy to report that I finished final edits and sent it into production last night from Bard’s Stevenson Library, so I’m feeling rather enthusiastic about the Bard community right now.

           To start us off, it is helpful to define some terms. I will use the acronym IC as a stand-in for the Intelligence Community. The IC is part of the Deep State (the bureaucracy that stays in place as presidents come and go), which serves the government regardless of its partisan orientation.

           Writing in the March–April 2018 issue of Foreign Affairs, the political philosopher Michael Walzer, whom some of you may know as the author of Just and Unjust Wars, identified several types of leaks and whistleblowing and explored their ethical implications. Walzer defined whistleblowing as conveying what a person “believes to be immoral or illegal conduct to bureaucratic superiors or to the public,” and he implied that there was no way to make an objective judgment about intelligence community leaks in the Trump era. “All governments, all political parties, and all politicians keep secrets and tell lies,” he writes. “Some lie more than others, and those differences are important.” The article mentioned Donald Trump by name only twice. He concludes that whistleblowing has only “an unofficial role to play in the democratic political universe” and “one must recognize both its possible value and its possible dangers.”¹
             Walzer wrote about secrets and lies yet avoided rendering a judgment on the Trump White House, in part because he rightly thinks that whistleblowing in America is ultimately defined by the perceptions of the American people. Yet at roughly the same time the piece appeared, the Washington Post on March 1st reported that Donald Trump had already made 2,436 false or misleading claims in a little over a year in the White House. So my argument with Michael Walzer, which I elaborate on in my book, is simply that we cannot ignore the elephant in the room without missing something of critical importance: the intelligence community is breaking the law to blow the whistle on Donald Trump for violating his oath to preserve, protect, and defend the Constitution of the United States.

           That might sound to you at first pass like a partisan argument. I’m going to argue that it’s not a partisan argument; it’s an American argument that looks only all the more that way with the passage of time. Perhaps this point can tie in very nicely with some themes we heard coming out of the last panel about the desire for unity and understanding when fundamental American values are at stake.

            So, what’s my argument? Here is the nutshell version. Walzer’s reasoning in early 2018 is thoughtful and nuanced and absolutely fine for politics as usual; but American politics today are highly unusual. I do not meant to suggest that there aren’t all sorts of continuities to which we can point. Professor Skocpol brought some of those out so well in the first presentation this morning. Yet taken as a whole, American politics today are extraordinary with Donald Trump in the White House. We need to take that particular context into account, because it changes the moral calculus that Walzer presents for ordinary times. Because the current administration has launched an assault on the rule of law itself, as well as the norms and practices of American democracy, officials in a position to expose the full extent of that misconduct are justified in so doing. And I’ll say a little bit more about that in a moment.

            It’s important to define my terms before proceeding, because I’m going to define whistleblowing slightly differently than Michael Walzer did. I am keeping morality out of the definition, because it renders the concept too malleable, although I ultimately want to make an argument about right and wrong in extraordinary times. For Hannah Arendt, Socratic morality becomes “politically relevant only in times of crisis. . . . When standards are no longer valid anyhow . . . nothing is left but the example of Socrates.”²
           
           What’s a better definition? I define whistleblowing as the insider exposure of illegal or improper activity. We know something is illegal when it violates the law, as determined by a court. We know something is improper when the relevant community of which the whistleblower is an insider deems it to be so. Here it is important to know that whistleblowing has long been recognized as an important part of American political life. Whistleblowers were first given protection by the Second Continental Congress in 1778. My book provides an episodic history of whistleblowing in the United States from the founding to the Trump era.

           Comparing this definition with partisan alternatives brings into fuller relief the vital role truth telling plays in sustaining civil discourse and American constitutional democracy. Whistleblowing is not a mere weapon for advancing partisan or personal interests in a fake-news world. It is not what denigrates others or vindicates our own political biases. The extreme left and right may view any revelation of secret information that serves their political ends as whistleblowing, but that is to blur important lines.

           All whistleblowers are leakers, but not all leakers are whistleblowers. Leakers expose secrets, but secrets are not always a cover for misconduct, even if their revelation can often embarrass individuals and destroy careers. In contrast, whistleblowers expose lies and wrongdoing, which their perpetrators would like to keep secret.

           Just as all leaking is not whistleblowing, all dissent is not whistleblowing. All whistleblowers are certainly dissenters in that they refuse to accept current circumstances, but all dissenters are not whistleblowers. Whistleblowers reveal truths that the powerful do not want to be made public, whereas dissenters simply disagree.

           Defined in this fashion, whistleblowing is a cousin of civil disobedience, but they are not one and the same. In the United States, the term civil disobedience was first coined by Henry David Thoreau. John Rawls in A Theory of Justice defines it as the “public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies.”³ Whistleblowers expose secret misconduct, which may or may not involve breaking the law.
          
           Whistleblowers differ from civil disobedients in that they appeal to the law or Constitution—to the American rule of law tradition—for justice, whereas civil disobedients challenge directly the legitimacy of particular laws. Both variants of dissent require political judgment.

            Another way of thinking about the same thing is to point out that civil disobedients often aren’t insiders; they’re outsiders. In contrast, whistleblowers are always insiders. They are members of the elite who expose misconduct they see that may be illegal, that may even be unconstitutional.

           Whistleblowing in the national security arena has always been the most controversial, because it conflicts with another professional obligation, namely, anybody in the national security community is supposed to guard classified information. National security employees are breaking the law by disclosing classified information without authorization.
For Hannah Arendt, “civil disobedience arises when a significant number of citizens have become convinced either that the normal channels of change no longer function . . . or that, on the contrary, the government is about to change and has embarked upon and persists in modes of action whose legality and constitutionality are open to grave doubt.”⁴ Civil disobedients break laws that they want to see changed. In this sense, just like whistleblowers, all civil disobedients are dissenters, but not all dissenters are civil disobedients.

           Arendt saw civil disobedience as uniquely American. It was a manifestation of what Tocqueville deemed America’s greatest strength, the vitality of its associations, more commonly known as civil society. “Civil disobedients,” wrote Arendt, “are nothing but the latest form of voluntary association . . . , quite in tune with the oldest traditions of the country.”⁵ Civil disobedience is “primarily American in origin and substance. . . . No other country, and no other language has even a word for it. . . . To think of disobedient minorities as rebels and traitors,” Arendt continues, “is against the letter and spirit of a Constitution whose framers were especially sensitive to the dangers of unbridled majority rule.”⁶

           The same could be said of whistleblowers—and I show this in my book—who often illuminate the gap between American ideals and a fact-based world, the real world, where ideals usually are not realized. Whistleblowing, like civil disobedience therefore, is distinctly American. It is ultimately an indirect call to renew the rule of law through new legislation defining corruption and the abuse of power; because whistleblowers are often very focused on corruption and the abuse of power, and there’s plenty of it going on, I need not tell you, in Washington today.

            Whistleblowing thus has a larger context. I’m focusing on public servants and the national security community, but obviously it’s prevalent in the corporate world, where protection of whistleblowing has become increasingly formalized in legislation, such as the 1986 amendments to the False Claims Act, or Sarbanes-Oxley, or the Dodd-Frank reforms. But what’s interesting here is that national security employees are explicitly excluded from the Whistleblower Protection Enhancement Act of 1989, and that exclusion was ratified when Congress updated the act in 2012. So whistleblowers in government have protection except in the national security realm.

            Extending whistleblower protection to the national security realm is admittedly a complex challenge. In ordinary times, we don’t want officials to have the right to decide for themselves whether classified information should be made public. My expertise is in American foreign policy, and I can elaborate on the reasons why classified information is important, if that’s not immediately obvious to you. And even today, leaks such as the release of transcripts of the president’s conversation with foreign leaders, where he sounds completely ignorant and simply not up to the challenge of leading the free world—those don’t constitute whistleblowing, because the behavior revealed did not involve any gross violation of the rule of law. In such circumstances I would argue that Walzer’s invocation of the ethical calculus of civil disobedience is valid. Those leaks shouldn’t happen.

            But when high officials in the executive branch who are sworn to uphold the Constitution openly flout and subvert it, and Congress fails to exercise its oversight responsibilities, then internal channels of dissent atrophy and a whistleblower’s calculations change. That is, when the rule of law itself is threatened, whistleblowing can be necessary to defend liberal democracy as a whole. I would argue that illegal leaks that expose true betrayals of American democracy are neither partisan nor political; they are patriotic invocations of Socratic morality.

            Which brings me to the elephant in the room: within days of taking office President Trump fired Acting Attorney General Sally Yates, and a few months later he fired FBI Director James Comey. Since then he has repeatedly tried to impede the investigation of Special Counsel Robert Mueller, attacked and slandered anybody who criticizes him or refuses to accept his claims of absolute authority, and has basically polluted public discourse with a stream of lies. “Our whole system falls apart,” Sally Yates would later say, “when the citizens of our country lose confidence in the justice system and the Department of Justice.” And Yates continued, “Almost from the very beginning of the Trump administration we’ve seen breaches of these rules and norms from the White House.” Now, she was a dedicated public servant confronting the danger firsthand, and she came out in a different place than Michael Walzer. Her recommendation: “When you see something happening that you think is wrong, and that’s different from something that you don’t think will be effective, I encourage you to speak up.”⁷ That’s the former acting attorney general.

            I don’t need to rehearse all the evidence for you here. I can if you’re interested when we get to questions, but suffice it to say that Yates was not alone in believing these are exceptional times. I’m not making a radical argument. As you may have noticed, an unprecedented number of former senior officials from the intelligence and national security communities of both political parties, every CIA director back to the Ronald Reagan administration, have spoken out against what they consider a unique threat to American political culture and American institutions. And many of their counterparts inside the system agree and feel obliged to cry foul themselves—not from whim, not from partisanship, but because they believe they are honoring their own sworn oath to preserve, protect, and defend the Constitution of the United States.

            In his memoir, A Higher Loyalty, James Comey repeatedly compares Trump to a Mafia boss. In Making Democracy Work, Robert D. Putnam delineates how Mafia justice fills the vacuum that is created when the people have lost faith in their legal institutions as enforcers of impartial justice. I mean, that’s what some people would argue was at stake in the Kavanaugh nomination, the very idea of impartial justice. We could talk about that if you like in the question period as well.

            I think what’s interesting here, and Comey writes about this, is that Donald Trump’s idea of governance mirrors the way in which a criminal corruption network advances its interests, which is obviously not how American democracy was designed to work. According to Masha Gessen writing in the New Yorker, the indictments in the Mueller investigation have exposed an attempt at state capture by an international crime syndicate.⁸ The Trump team has subverted democratic norms in an unprecedented way. Trump has shamelessly used the presidency for personal enrichment. While the jury is still out, he very much appears to have obstructed justice. All of Trump’s self-serving actions reflect faithlessness to the American legal order rather than partisanship. And for those who have dedicated their lives to public service, his abuse of power has been a call to arms.

            So I’ll just give you one example, and there are many more in my book: if you look at the FBI director, only Donald Trump thinks that is a partisan appointment. FBI directors serve ten-year terms, and they’re supposed to be above politics, impartial, loyal to the Constitution rather than to a particular political party. When Barack Obama was thinking of naming James Comey FBI director, he only met with him twice, once to interview him for the job, and once to tell him he was going to be nominated. At their second private meeting, President Obama told James Comey it would be their last private meeting. Why? Because impartial justice requires an FBI director to be independent of the president.

            Now contrast this with Donald Trump’s behavior. You don’t have to add it up; I’ll add it up for you. In the short four months before Trump fired James Comey without informing him first on 9 May 2017, Trump met with his inherited FBI director without others present no fewer than four times and spoke with him four times by phone. Trump also sought out Comey to hug him publicly at a White House reception for the leaders of law enforcement agencies on 22 January 2017 (Comey dodged the hug but wound up instead appearing to get a public kiss).⁹

           Now, I am sure that some of you might point to Obama’s use of executive orders as subversive of the rule of law. I am not arguing that others are above criticism. We have all contributed to the mess we are in. Instead, I would simply like to focus attention on where we are right now, and what Americans should want to see happen from here.

            In his classic Just and Unjust Wars, Michael Walzer discusses the case of Arthur Harris, the leader of Great Britain’s Bomber Command during the Second World War. He’s the man who was the architect of terror bombing raids on Germany that killed countless civilians. Walzer argued that in cases of supreme emergency, when the very existence of the state is at question, it might be possible to fight unjustly for a just cause.

           Walzer warns us to beware of the community that does not take full heed of the moral implications of invoking supreme emergency. After all, Adolf Hitler declared a state of emergency and suspended the Weimar Republic’s constitution through the 1933 Enabling Act, unleashing the Nazi revolution. In contrast, Walzer cites the British dishonoring of Arthur Harris under Prime Minister Winston Churchill as an example of leadership that fully acknowledged the supreme danger in using immoral means, taking symbolic steps to put the community back on track after the war was won and the threat to democracy had receded.

           Who was Arthur Harris? Harris was the leader of Britain’s Bomber Command and an advocate and administrator of terror bombing. After the war, Harris did not win a peerage, nor do the names of the fallen members of his bomber squadron appear on the plaque honoring the fallen in Westminster Abby. Churchill’s dissociation from Harris after the war had been won, Walzer points out, was part of a national dissociation to restore the moral universe that Harris had violated. Churchill needed Harris to do dishonorable things during the war for a higher cause, but he also needed to condemn Harris thereafter to reaffirm the values that the British people had temporarily overthrown.¹⁰

           Once these unique depredations of the Trump presidency end—and let’s be clear, utopia will not be immediately forthcoming, as many problems we have discussed today will remain and require our vigilance—I would argue that the illegal leaking that is occurring in response to the Trump presidency will obviously need to end as well. At that point it will be possible to draw up the ethical balance sheets and assign everybody involved their proper penance as a means of restoring the moral universe that Trump endeavored to overturn.

           But until the immediate danger has passed, it makes sense, regardless of your political affiliation, to focus on the shocking substance of the information being revealed rather than the questionable means by which that information is coming to light, and to do what we can to put the rule of law back on track. “The new always happens against the overwhelming odds of statistical laws and their probability,” Arendt reminds us. “The new therefore always appears in the guise of a miracle.”¹¹

1. Michael Walzer, “Just and Unjust Leaks: When to Spill Secrets,” Foreign Affairs (March/April 2018).
2. Hannah Arendt, Responsibility and Judgment (New York: Schocken Books, 2003), 104, 106.
3. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 2005), 364.
4. Hannah Arendt, “Civil Disobedience,” in Crises of the Republic (New York: Harcourt Brace, 1970), 74.
5. Ibid., 96.
6. Ibid., 76.
7. Becky Beaupre Gillespie, “Saying No to the President: Schwarz Lecturer Sally Yates on Standing Up to Trump—And Why She Thinks the Rule of Law Is Under Siege,” University of Chicago Law School, November 29, 2017. law.uchicago.edu/news/saying-no-president.
8. Masha Gessen, “The Trump-Russia Investigation and the Mafia State,” New Yorker, 31 January 2019. newyorker.com/news/our-columnists/the-trump-russia-investigation-and-the-mafia-state.
9. On 6 January 2017 to inform him of the Steele Dossier; on 27 January 2017 for a private White House dinner; on 8 February 2017 after meeting with Chief of Staff Reince Priebus; and on 14 February 2017 in the Oval Office to discuss Michael Flynn. President Trump also spoke with Comey four times by phone (on 11 January 2017 after BuzzFeed published the Steele dossier; on 1 March 2017; on 30 March 2017; and on 11 April 2017). James Comey, A Higher Loyalty: Truth, Lies, and Leadership (New York: Flatiron Books, 2018), 223–27, 232–44, 247–55, 257–61, and 232 for the creepy hug/kiss.
10. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 5th ed. (New York: Basic Books, 2015), 257, 260, 323–25.
11. Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1998), 178.