That would be disappointing, right?
So it should be similarly disappointing that Clinton-era Special Counsel and current OPM General Counsel Elaine Kaplan successfully advocated limiting whistleblowers’ rights, in Berry v. Conyers & Northover in the Federal Circuit, right?
Recall that Kaplan received a Connie Morella award from a number of good government groups after leaving office. So it may be difficult for them to discuss this issue, but it’s one worth having: what should we expect from Special Counsels?
5 U.S.C. 1211 lists the statutory requirements:
The Special Counsel shall be an attorney who, by demonstrated ability, background, training, or experience, is especially qualified to carry out the functions of the position.
Pretty vague. One could argue that “demonstrated ability [or] background” should mean “commitment to civil rights,” in which case this is met by the current occupant, Carolyn Lerner. But what if Lerner became a higher-up at DOJ or elsewhere in 10 years and did something harmful to the cause? I suppose there are no guarantees, but in other grassroots communities, a well-respected advocate joining the “enemy” would create shockwaves, and that might serve as a deterrent. Not here. Why? Is it because we’re resigned to the fact that Democratic Special Counsels get awards, no matter how well they perform, but Republican ones are demonized? That doesn’t seem right. It seems downright… demoralizing.
Recall that NTEU, where Kaplan was a deputy general counsel in the mid-nineties, was responsible for the election of remedies fiasco that we’re now hearing about. So it’s not surprising that she’s not committed to whistleblowers. I wasn’t around during her 1998-2003 tenure, but I haven’t heard positive reviews. Yet Kaplan seems to believe otherwise (footnote 36).
If only the community were powerful enough that even the most craven Special Counsel would think twice before betraying whistleblowers. If only.