Letter to the Hon. Jeff Sessions, Attorney General - Instructions to Employees Must Include Whistleblower Guidance

Letter

Dear Attorney General Sessions:

Recently the Committee obtained a copy of a memorandum, attached here, from you to the heads of all Department of Justice components and all U.S. Attorneys entitled "Communication with Congress."[1] I write to alert you that the memorandum does not appear to comply with existing law and to request that you revise it accordingly.

The memorandum purports to direct Department employees that:

communications between the Department and Congress, including those pertaining to policy, legislation, political appointments, nominations, intergovernmental and public liaison relations, cases and investigations, and administrative matters, will be managed or coordinated by the Office of Legislative Affairs (OLA) to ensure that relevant Department and Executive Branch interests are fully protected.

The memorandum further attempts to prevent direct communications between federal employees and Congress. It admonishes that "attorneys, officers, boards, divisions, and components should not communicate with Senators, Representatives, congressional committees, or congressional staff without advance coordination and consultation with OLA," and that all inquiries, whether from "Members, committees, [or] staff should be immediately directed to OLA upon receipt."

I appreciate that the Department, and indeed the Executive Branch, must speak with one voice on official matters, and that it has a right to ensure that its official positions are communicated in an orderly and coherent way. I also appreciate that the Department is concerned that it provide timely responses to congressional inquiries and has instructed components to "make it a priority to assist OLA in this regard." Timely and accurate responses to congressional inquiries are crucial in promoting comity between the branches and the constitutional imperative of congressional oversight.

Unfortunately, the memorandum fails to address the right of employees to make protected disclosures directly to Congress. The law is clear that any non-disclosure agreement or policy, including any policy that purports to restrict the communications of federal employees, must contain a clear exception for lawful whistleblowing.[2] Additionally, denying or interfering with the right of employees to furnish information to Congress is also against the law.[3] Federal officials who deny or interfere with those rights are not entitled to have their salaries paid by taxpayers' dollars.[4] Without directly addressing the rights of federal employees to communicate with Congress, the memorandum could leave the impression that the Department is attempting to prevent lawful disclosures and discourage employees from exercising their statutory and constitutional rights to directly communicate with Congress. Thus, please review this memorandum and address the deficiencies I have raised as soon as possible with a corrective communication to all employees who received it.

I appreciate your cooperation in this important matter. If you have questions, please contact DeLisa Lay of my Committee staff at (202) 224-5225.

Sincerely,

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