On January 26, 2017, ABC News Reported that President Trump issued a memorandum to certain Federal Employees restricting their communication with Congress. If true, this poses a problem for all Federal Employees because communications to Congress and the relevant Congressional Committees are protected communications by law. (see The Whistleblower Protection Enhancement Act, the Intelligence Community Whistleblower Protection Act, and Title 10 as it applies to the Military (“No person may restrict a member of the armed forces in communicating with a Member of Congress or an Inspector General.”)).
Please note: certain Federal Employees, notably members of the Intelligence Community, must follow internal policies and procedures to properly communicate with Congress.
Under normal circumstances, an allegation of retaliation because an individual went to Congress would be the subject of a whistleblower reprisal investigation. The restrictions imposed by the President, which may run contrary to law, poses an interesting question:
Can the President of the United States be the subject of a Whistleblower Reprisal Investigation?
The short answer is: perhaps. If so, given the circumstances and the current environment here in Washington, I would posit that a Congressional Committee would be the only body that could effectively and independently investigate such an allegation.
