What Political Speech is Protected?

Congressman Jim Jordan (R-OH) says that he is being told by FBI insiders that there is a purge against whistleblowers criticizing the FBI's pursuit of politicized "law enforcement." 

The FBI is allegedly engaging in a "purge" of employees with conservative viewpoints and retaliating against whistleblowers who have made protected disclosures to Congress by revoking security clearances, the top Republican on the House Judiciary Committee Rep. Jim Jordan told Fox News Digital.

Generally one might doubt a partisan's word in a partisan debate, but on this occasion there is good reason to believe him: Attorney General Merrick Garland explicitly said that he would go after anyone in DOJ who spoke to Congress about their concerns. He claims it is illegal to talk to your Congressman about your concerns.

Mr. Garland wrote that all communication with Congress must be conducted through the department’s office of legislative affairs.

The policy is “to protect our criminal and civil law enforcement decisions, and our legal judgment from partisans or other inappropriate influences, whether real or perceived or indirect,” he said in the memo, sent late Tuesday.

He stressed that the new policies “are not intended to conflict with or limit whistleblower protections” and that “Congress may carry out its legislative oversight functions.”

Kurt Siuzdak, a former FBI agent and a lawyer who represents bureau whistleblowers, said the memo is targeting employees who want to speak out against misconduct.

“There’s no whistleblower status, per se. If you make a protected disclosure of criminal wrongdoing or serious misconduct, and then they retaliate, you go to the office of attorney recruitment and management and they basically will remove any personnel actions after two to five years, and people know it’s two to five years. And they know the office of general counsel is going to fight and cause [sic] them lots of money,” he said.

“‘So if it’s not a whistleblower, then we’re coming after you’ is what they would say,’” he said. “‘If we determine you’re not a whistleblower, then we’re going to retaliate. … Because if you’re going to report misconduct to the Congress, and that doesn’t rise to the level of misconduct, then we’re going to take action.’’’

The First Amendment clearly intends to protect political speech above all forms of speech; and the right to appeal to Congress, which is the branch the Founders addressed in Article I of the Constitution before they gave a thought to the executive or judicial, is surely the most important subset of this kind of political speech. The representative branch is the first branch, and the right to petition it for redress of grievances is part of the first freedom.

It seems to me Congress ought to impeach any executive branch official who bars employees from talking with their elected legislator about concerns of executive branch misconduct. That ought to be a bipartisan, nonpartisan front that Congress cared about as a defense of its own prerogatives as a co-equal Constitutional branch (or even, one could readily argue from the Founding commentary and very organization of the Constitution, the primus inter pares of the three Constitutional branches).

Unfortunately, partisanship is now stronger than the interests of the different branches in protecting their part of the division of powers. This indicates a serious disease in the bone structure of the republic; that the courts increasingly appear to be dividing on the partisan lines of judges' personal politics is another symptom.