Tuesday, July 10, 2007

Garcetti Incentives At Work

Newsletter One of the criticisms of the Supreme Court's decision in Garcetti v. Ceballos (U.S. 2006), which held that public employee have no First Amendment protections when speaking pursuant to their official duties, is that it seems to give public employees the incentive to air their dirty laundry outside of work so they can get the protection of being a citizen.

Case in point: this letter from current Department of Justice (DOJ) senior attorney John Koppel to the Denver Post.  In the letter, Koppel lashes out against the politicization of the DOJ by the Bush Administration.  For instance, Koppel writes:

As a longtime attorney at the U.S. Department of Justice, I can honestly say that I have never been as ashamed of the department and government that I serve as I am at this time.

The public record now plainly demonstrates that both the DOJ and the government as a whole have been thoroughly politicized in a manner that is inappropriate, unethical and indeed unlawful. The unconscionable commutation of I. Lewis "Scooter" Libby's sentence, the misuse of warrantless investigative powers under the Patriot Act and the deplorable treatment of U.S. attorneys all point to an unmistakable pattern of abuse.

In the course of its tenure since the Sept. 11 attacks, the Bush administration has turned the entire government (and the DOJ in particular) into a veritable Augean stable on issues such as civil rights, civil liberties, international law and basic human rights, as well as criminal prosecution and federal employment and contracting practices.

Recognizing that his words may not win friends in the Administration, Koppel also writes:

I realize that this constitutionally protected statement subjects me to a substantial risk of unlawful reprisal from extremely ruthless people who have repeatedly taken such action in the past. But I am confident that I am speaking on behalf of countless thousands of honorable public servants, at Justice and elsewhere, who take their responsibilities seriously and share these views. And some things must be said, whatever the risk.

I have to say that I have never seen speech on a matter of public concern which in so self-aware a manner recognizes the current limits of First Amendment protection for public employees. 

It will be interesting to see if the DOJ takes action against Koppel.  If so, Koppel, as a federal employee and as a result of Bush v. Lucas (U.S. 1983), will have to bring any First Amendment claim that he has to the Merit System Protection Board (MSPB), another politicized agency of the Bush Administration.

Oh, the irony!

PS

https://lawprofessors.typepad.com/laborprof_blog/2007/07/garcetti-incent.html

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Comments

I'm impressed by the phrase, "veritable Augean stable."

Posted by: Joseph Slater | Jul 10, 2007 10:21:53 AM

Mr. Koppel is the manifestation of enormous courage, integrity, and intelligence possessing the selflessness of a true American patriot. Mr. Koppel, your inspirational words have given me hope for our nation that I once thought lost to the terrorizing cannibals in the Bush administration, eviscerating our constitutional rights and freedoms. Thank you, from the heart of a grateful Texan.

Posted by: Leslie Pool | Jul 10, 2007 7:30:07 PM

This guy certainly has the right to his political opinion, but it is a political opinion, not whistleblowing, and it is not particularly courageous or noble. He wants the reader to think he is running an enormous risk by writing this letter, and that he has courageously decided to publish the letter anyway, because of his integrity and moral bravery.

In fact, by writing this letter he has perfectly positioned himself to claim retaliation the next time one of his superiors disagrees with one of his on-the-job decisions, or fails to say "good morning," or looks at him the wrong way.

As a "Senior Attorney" in his district, has he been forced to participate in what he considers illegal and/or immoral acts? If so, wouldn't the courageous thing be to resign rather than participate in such heinous acts? If he is so ashamed of his employer he is free to leave and find other employment. In fact, don't the ethics rules require him to report the specifics of any illegal or unethical behavior to the disciplinary board in his state?

I also have to wonder if he was equally outraged
when Clinton granted full pardons to 140-odd people on his way out of office, or when Janet Reno, upon becoming AG, replaced EVERY U.S. Attorney and made no bones about the fact that it was for political reasons.

Publius

Posted by: Publius | Jul 12, 2007 8:49:07 AM

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