Biden's Legacy: Fundamentally Changing Nothing For Whistleblowers

Editor's Note: The following is the third in a series of articles on President Joe Biden's legacy when it comes to press freedom, whistleblowing, and government secrecy. The series began in November, and the final article in the series will be published next week.

When Joe Biden was vice president under President Barack Obama, he was part of an administration that waged an unprecedented war on leaks.

President Biden may not have been as zealous as Obama, however, he periodically harnessed the very machinery that Obama and President Donald Trump wielded to enforce secrecy and silence whistleblowers. 

With the Espionage Act, the Obama Justice Department prosecuted more United States government employees and contractors who disclosed information to the press than all previous presidents combined. The Trump Justice Department continued this practice and used the 1917 law to punish NSA whistleblower Reality Winner, FBI whistleblower Terry Albury, and drone whistleblower Daniel Hale.

Biden inherited the Espionage Act prosecution against Hale. Despite the fact that Obama Justice Department officials were unwilling to charge Hale with a crime, Attorney General Merrick Garland and officials in the Biden Justice Department’s National Security Division fully embraced the case that was launched by Trump.

Hale revealed documents that brought attention to the sheer amount of civilian deaths caused by so-called “targeted killing” operations. For example, during “one five-month period" of Operation Haymaker in northeastern Afghanistan, “nearly 90 percent of the people killed in airstrikes were not the intended targets.” 

He also disclosed a “watchlisting guidance” document that showed “more than 40 percent” of the people in the U.S. government’s database of terrorism suspects had “no recognized terrorist group affiliation.” Muslim Americans relied on the document to force the government to remove them from the No Fly List. 

Hale accepted a plea deal in 2021, and his defense asked for a sentence of 12 to 18 months. But Gordon Kromberg, who was the assistant U.S. attorney for the Eastern District of Virginia, rejected this request and vilely compared Hale’s actions to heroin dealing. “In analogous circumstances, no one would award such a reduction to a heroin dealer who admitted that he violated the law by distributing heroin, but simultaneously asserted that by distributing the heroin he was helping society rather than harming it.”

The Biden Justice Department asked Judge Liam O’Grady for a nine-year sentence, however, O’Grady issued a sentence that was a little more than three and a half years. Hale spent 33 months in a Communications Management Unit (CMU) at U.S. Penitentiary Marion in Illinois, which was designed by President George W. Bush’s administration as part of the “global war on terrorism.” 

Hale endured the harshest confinement conditions that anyone convicted of violating the Espionage Act has ever been forced to endure. By putting Hale in a CMU, he was effectively cut off from the support network that came to his aid during his prosecution. The prison could prevent him from writing articles for publication or retaliate against him if he gave any journalists permission to publish his writing.

(Note: Biden also inherited the Espionage Act prosecution against WikiLeaks founder Julian Assange. That will be covered in the final article in The Dissenter’s “Biden’s Legacy” series.) 

Imprisoning The IRS Whistleblower Who Revealed Trump's Tax Returns

The Biden Justice Department made an example out of IRS whistleblower Charles Littlejohn, who disclosed Trump’s tax returns as well as files that showed “how billionaires like Jeff Bezos, Elon Musk and Warren Buffett pay little in income tax compared to their massive wealth—sometimes, even nothing.” 

According to CNN, Biden’s campaign “reacted swiftly” to the revelation that “Trump paid no federal income taxes in 10 out of 15 years beginning in 2000, turning around a digital video and putting out merchandise within hours of the report’s release.” 

Even though Biden benefited from the disclosure of public interest information, the Biden Justice Department charged Littlejohn with one count of “unauthorized disclosure of tax returns and return information.” 

At sentencing, prosecutors claimed Littlejohn was “motivated by ideology or politics or economic gain” and asked a U.S. court to issue a “lengthy term of incarceration.” They also urged the court to consider Espionage Act cases and maintained Winner’s unprecedented sentence would be appropriate for Littlejohn. 

Judge Ana Reyes, who was appointed by Biden, responded by asserting that Littlejohn’s whistleblowing constituted a “threat to our democracy” that engendered the “same fear” as the January 6th riots. Reyes sentenced him to five years in prison, which was six times what the federal sentencing guidelines recommend. 

During Trump’s first term, gag orders were reportedly adopted at the Environmental Protection Agency (EPA), the Department of Agriculture, Department of Health and Human Services (HHS), Department of Interior, and the Department of Transportation. It was feared by Democrats in the House of Representatives that the orders were imposed to silence or retaliate against whistleblowers, and a “media blackout” was imposed on EPA employees. 

Yet in October 2024, Public Employees for Environmental Responsibility (PEER) called attention to the fact that Biden administration officials had expanded bans against scientists who make or publish “statements that could be construed as being judgments of, or recommendations on” any federal policy. The policy was initially adopted by the Agriculture Department “at the behest of agribusiness.” The National Institutes for Health (NIH) and the Social Security Administration also incorporated the “gag language.” 

PEER Pacific Director Jeff Ruch emphasized that “NIH’s speech ban [was] so broad the agency even added a footnote stipulating it does not apply to legally protected statements, such as whistleblower disclosures.”

On June 3, 2021, Biden issued a memorandum on “fighting corruption that represented his intent to “lead efforts to promote good governance; bring transparency to the United States and global financial systems; prevent and combat corruption at home and abroad; and make it increasingly difficult for corrupt actors to shield their activities.” However, his administration barely pursued this anti-corruption agenda.

However, U.S. Office of Special Counsel statistics showed that complaints declined by more than 40 percent between fiscal years 2017 and 2022. That happened despite the fact that the number of federal employees increased, and the Biden administration did very little to repair the broken system for internal whistleblower complaints by government employees.

A coalition of groups led by the American Civil Liberties Union (ACLU) urged the Biden administration to back reforms that would allow whistleblowers to seek a jury trial in federal court rather than wait for the sorely underfunded and ineffectual Merit Systems Protection Board (MSPB) to review their complaints. But despite a decades-long struggle for this reform and the rampant corruption during Trump’s first term, Biden did not advocate for this change.

Retaliating Against Whistleblowers Who Exposed Sexual Abuse

In October 2022, a whistleblower revealed that 665 FBI personnel, including 45 senior officials, had resigned between 2004 and 2020 to avoid discipline after they were accused of sexual misconduct. 

A CIA whistleblower filed a federal civil rights lawsuit that alleged that she was sexually assaulted in a stairwell. Her courage emboldened at least a dozen other woman to come forward with stories of alleged sexual assaults at the CIA, but in February 2024, it was reported by the Associated Press that she had been fired from the espionage agency. The CIA whistleblower’s attorney called the termination a “brazen act of retaliation.”

The federal Bureau of Prisons (BOP) was embroiled in a scandal in early 2022 when a warden and staff at Federal Correctional Institution Dublin in California were accused of rampant sexual abuse of prisoners. FCI Dublin even had become known as a “rape club.” But the BOP did not immediately encourage whistleblowers to come forward and help the government end this misconduct. 

PBS News reported that whistleblower employees alleged that they were bullied by “high-ranking prison officials” for “exposing wrongdoing” and even threatened the employees with shutting down the facility if they kept challenging the abuse. (The Associated Press also reported that prisoners who were sexually abused could be put in solitary confinement if they accused staff of misconduct.)

There were a few bright spots when it came to whistleblower rights for migrant workers. As the Center for Public Integrity reported, the Department of Homeland Security announced in January 2023 that “undocumented immigrants enduring abuses from employers such as wage theft, safety infractions and gender discrimination [could] now obtain deportation relief when they report workplace violations to a government agency.”

Following whistleblower allegations, Immigration and Customs Enforcement (ICE) involving medical and gynecological abuse, ICE terminated its contract at Irwin County Detention Center with LaSalle Corrections in Georgia in May 2021.

Another positive development was the clear stance that the National Labor Relations Board (NLRB) took to defend union organizing and workplace whistleblowing. In 2022, Jennifer Abruzzo, who was general counsel for the NLRB, strongly opposed corporate spying to suppress whistleblowers and prevent the formation of unions. 

But by 2023, a bombshell report from the New York Times examined how the Biden administration had shown indifference to the exploitation of migrant children. “Thousands of children have ended up in punishing jobs across the country—working overnight in slaughterhouses, replacing roofs, operating machinery in factories—all in violation of child labor laws,” the Times detailed. 

At least one whistleblower at HHS, Jallyn Sualog, alleged that she had faced retaliation after she called attention to the growing evidence of child exploitation. The Office of the Inspector General compiled a report that found evidence of “demotions and dismissals” that had fostered a chilly climate for whistleblowers who spoke up for the safety of migrant children.

Biden Justice Department Helped Boeing Avoid More Serious Consequences For Criminal Fraud

Boeing whistleblowers received a lot of attention during the Biden administration, especially after a “fuselage panel blew out on an Alaska Airlines Boeing 737 Max 9” in January 2024. Boeing engineer Sam Salehpour alleged in April 2024 that “almost 1,000 787s and about 400 777s currently flying [were] at risk of premature fatigue damage and structural failure” due to “shortcuts” taken to increase production.

The Federal Aviation Administration audited Boeing in June 2023. The Seattle Times reported that Sam Mohawk, a quality assurance inspector for a MAX final assembly plant in Renton, Washington, alleged that the corporation responded by intentionally hiding “improperly stored parts” and instructing him to “cancel” records that designated parts as “nonconforming.” 

As the Biden Justice Department considered how to respond to Boeing’s violations of a 2021 deferred prosecution agreement, which stemmed from two fatal plane crashes in 2018 and 2019, Boeing whistleblowers testified before the U.S. Senate in April 2024, and the Senate released a report a month later that further exposed the corporation’s corrupt manufacturing practices. 

The families of those killed in the crashes begged prosecutors to criminally charge Boeing executives. In spite of overwhelming evidence of fraud from whistleblowers and various investigations, the Biden Justice Department agreed to another deal with Boeing that allowed executives to avoid a trial and potentially dire consequences for their contracts with the U.S. government.

When a severe infant formula shortage and a product recall by Abbott Laboratories sparked a major crisis in 2022, it was eventually revealed that the Food and Drug Administration (FDA) had not acted on a whistleblower complaint submitted in October 2021. Understaffing and underfunding at the FDA's food safety division played a major role in the agency's lack of response. But the Biden administration seemingly did very little to ensure that agencies like the FDA received more funds to handle whistleblower complaints.

The Project on Government Oversight (POGO) reported that a whistleblower at a “little-known U.S. government agency” called the U.S. International Development Finance Corporation had questioned a deal that would have directed $100 million to be spent on a toll road and bridge in the Democratic Republic of the Congo and Zambia to “help link valuable cobalt mines” to the “port of Dar es Salaam in Tanzania.”

The whistleblower warned that the project would likely displace nearly 10,000 people and violate an agency policy against funding projects that displaced 5,000 or more people. After the whistleblower refused to sign off on the project, they were fired in August 2023.

EPA whistleblowers brought attention to the approval of hazardous chemicals and doctoring of scientific assessments, which occurred before, during, and after Trump’s first term. After journalist Sharon Lerner produced a series on the whistleblowers and their allegations, two “internal science policy advisory councils” were empaneled to address problems that were revealed. Still, there were issues related to hazardous chemicals that continued at the EPA’s Office of Chemical Safety and Pollution Prevention while Biden was in office. 

After a bulldozer fighting a wildfire in North Carolina unearthed several “ancient tools,” a career U.S. Forest Service archeologist named Scott Ashcraft blew the whistle on “outdated modeling” that had missed the buried artifacts of Indigenous people. He urged the agency to reconsider “prescribe fires, logging projects, new recreational trails and other work on national forest lands.” Rather than address his concerns, Ashcraft claimed in 2024 that he had faced retaliation.

Dissent Over US Support For Israel's Bombing Of Gaza

The Biden administration’s support for the Israeli government and its bombing of Gaza resulted in an unprecedented surge of dissent within U.S. agencies. By July 4, 2024, at least 12 individuals had resigned in opposition. 

Josh Paul, a State Department whistleblower, had overseen U.S. arms transfers to Israel and other countries, and in particular, the process of notifying Congress. After he resigned, Paul alerted the public to the fact that shipments of U.S. military weapons and equipment were not going through standard human rights vetting, like tens of thousands of arms sales do each year. He further claimed that the “space for debate” and the “ability to mitigate some of the worst possible outcomes” of arms sales had disappeared.

Huffington Post reported on October 26 that Blinken and “some of his lieutenants” had “listening sessions and town hall meetings” with staffers to discuss the assault on Gaza. But managers informed staffers that “they should not expect to influence U.S. policy on Israel-Palestine regardless of their national security chops.”

The climate for whistleblowing worsened. In May 2024, another State Department whistleblower named Stacy Gilbert resigned from the Bureau of Population, Refugees, and Migration because Secretary of State Antony Blinken and other senior officials had signed off on a finding that “Israel was not deliberately obstructing the flow of food or other aid into Gaza.”

According to Gilbert, the report was “edited at a higher level” during the final weeks so that it did not reflect the consensus of experts at the State Department. Senior officials did not want it to reflect the reality that Israel had obstructed food and medical supply deliveries to Gaza.

For the first article in The Dissenter's series on "Biden's Legacy," go here, and for the second article in the series, go here.