Trump’s Purge of the Vindmans Violates the Constitution and Whistleblower Laws

By Richard Condit and Michael Lieder

This week, former White House Chief of Staff John Kelly reportedly expressed misgivings about President Trump’s removal of Lt. Col. Alexander Vindman from the White House because, according to Kelly, Vindman did what he was trained to do in the military. But the removal of Vindman was not just at odds with military training, it also violated both the Constitution and federal statutes, as interpreted even by conservative Justices.

In our work as employment lawyers we rarely see retaliation cases as transparent and obvious as President Trump’s recent attack against Vindman. And, in a Mafia-style approach to retribution, Trump even purged Vindman’s twin, Yevgeny Vindman, who also was working for the NSC.

Trump’s actions are more blatantly illegal than those that resulted in his impeachment.

Most managers attempt to veil their retaliation. But Trump makes no effort at pretext. Because Trump is unchecked by Republican Senators (Mitt Romney presently excluded) and Attorney General Barr, he can attack whistleblowers and other dissenters with near impunity.

The First Amendment to the Constitution prohibits Congress from making laws “abridging the freedom of speech.” Courts ruled decades ago that the First Amendment protects against executive as well as Congressional action that infringes on this fundamental right.

The Supreme Court repeatedly has declared, including in decisions authored by former Chief Justice William Rehnquist, that the First Amendment protects military personnel as well as civilians, although the protections are not as broad for soldiers. Alexander Vindman was not fired from his NSC position because his actions after hearing Trump’s July 25th call with Ukraine President Zelensky or his testimony to Congress under subpoena undermined military discipline. The firing thus likely violated Vindman’s First Amendment rights.

Even more clearly, Trump’s firing of Yevgeny Vindman retaliated against Alexander Vindman in violation of the First Amendment. In a unanimous opinion authored by Justice Antonin Scalia, the Supreme Court held that an employer violated a civil rights law by firing an employee whose fiancé had filed a charge of sexual discrimination against the employer. Scalia explained that the law prohibited “any employer action that ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,’” and that “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” So too might a federal employee be dissuaded from exercising his First Amendment rights if he knew that he or his twin brother would be fired from a prestigious assignment.

But Trump’s firing of the Vindmans does not implicate only the Constitution. Trump violated Vindman’s rights to communicate with Congress as protected under the Lloyd-La Follette Act. That Act provides that “[t]he right of employees … to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.”

Trump also violated federal whistleblower protections. Protecting and encouraging whistleblowing is one of our Nation’s founding principles. On July 30, 1778, the Continental Congress enacted the first whistleblowing law proclaiming it “the duty of all persons in the service of the United States … to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states.”

Currently, over two dozen laws protect public and private sector employees who report perceived wrongdoing. One of them, the Military Whistleblower Protection Act, declares that “[n]o person may restrict a member of the armed forces in communicating with a Member of Congress or an Inspector General.” Anticipating that whistleblowers may suffer retaliation, the law also makes it unlawful to “take … an unfavorable personnel action … as a reprisal against a member of the armed forces for … communicat[ing with] a Member of Congress.” This is exactly what Trump did, not only against Alexander Vindman, but also against his twin brother.

Trump’s actions are more blatantly illegal than those that resulted in his impeachment. If the country had not just gone through a wrenching battle over impeachment, proceedings to remove the President from office for deliberately violating the Constitution and federal laws should commence immediately. But because neither side of the aisle will want to restart a futile removal process, whistleblowers may be the only way that voters will learn of the inner workings of this Administration in order to determine how best to exercise their First Amendment rights and how to cast their votes.

And even though this Congress will not act against this President, it can initiate hearings and pass legislation intended to better protect whistleblowers from abuses of presidential power. For example, it should expand Whistleblower Protection Act protections to include employees assigned to or working in the White House as well as all State Department employees.

Alexander Vindman declared before Congress that America stands for what’s right. It’s time for America to do what’s right by standing up for its courageous whistleblowers.

Richard Condit and Michael Lieder are whistleblower and employment attorneys in Washington, D.C. For more information, visit https://findjustice.com/