By Jennifer Gibson, TSN Legal Director
In 2021, the New York Times and ProPublica began running a series of articles detailing how much – or in fact how little – America’s wealthiest individuals pay in taxes. Drawing from years of leaked tax returns, the stories covered everyone from President Donald Trump to Jeff Bezos, Elon Musk and hundreds of other household names.
The stories were possible because of one person – Charles Littlejohn, an IRS contractor who leaked the materials. His reward for shedding light on our tax system’s failings? Five years in prison, the maximum sentence possible.
The leaked documents showed the wealthiest Americans and Trump paid little to no federal taxes. Littlejohn, in being sentenced, has been held accountable; these ultra-wealthy and powerful individuals have not.
Littlejohn said he felt morally compelled to disclose the information, that the American people had a right to know the information and sharing it was the only way to effect change.
But the judge who sentenced him called it “an attack on our constitutional democracy” for targeting a sitting president.
There is no doubt that Littlejohn broke the law. (Littlejohn disclosed tax returns of about 7,600 people and 600 entities, prosecutors said.) But the judge is wrong: Whistleblowing is not an attack on our constitutional democracy; it is the lifeblood of it. Whistleblowers help shed light on issues we as a public deserve and need to know. From Daniel Ellsberg and the Pentagon Papers to Frances Haugen and the Facebook Files, and thousands in between, the information they disclose helps frame public debates and ensure powerful entities are held accountable.
Equally importantly, whistleblowers play a critical role in ensuring the Fourth Estate can do its job. Whistleblowers are at the heart of good investigative journalism. The information they share allows the media to act as a check on the government and to ensure powerful actors are held accountable.
Quite simply, investigative journalism doesn’t exist without whistleblowers. No clearer is that point made than by the fact that ProPublica has continued to publish stories using Littlejohn’s leaks since he pled guilty. Whistleblowers face huge risks when deciding to speak out. It is fair to say that there is no better way to blow up your livelihood than to blow the whistle. But in addition to financial ruin, they also often face social ostracization and trauma.
Littlejohn risked everything – including his liberty – to disclose how broken our U.S. tax system is. Instead of focusing on punishing him, we should be focused on how to fix it. We should be focused on why it is that so many of America’s wealthiest citizens pay zero to no tax and how an IRS contractor was able to access Americans’ sensitive personal data.
But all too often, we focus on shooting the messenger rather than reflecting on the message. And we do so to all of our detriment.
Right now, someone somewhere is witnessing wrongdoing and trying to decide whether they should speak up. They are trying to decide whether they should risk everything to ensure we, the public, know what is happening. I know because every day in my role as Legal Director of The Signals Network, a nonprofit that supports whistleblowers around the world, I receive calls from them.
Tech workers who have witnessed policies and practices that are leading to real-time harm to children. Health company workers who have discovered that the technology their companies are selling doesn’t actually work. And yes, government employees who have witnessed wrongdoing at the highest echelons of power.
We need these individuals to come forward and to keep coming forward so we have the transparency we need for our democracies to thrive. We need them to ensure the powerful are held accountable.
Right now, though, the next whistleblower has paused what they are doing. They’re taking a step back and asking themselves – is this worth five years in prison?
That chilling effect is detrimental to all of us. With our democracy under threat now more than ever, we need more whistleblowers, not less. We need whistleblowers to know that they will be protected and supported if they come forward. We need journalists to be able to tell their sources that they will be protected.
If the courts can’t provide that protection, then we need legislators to step up and legislate it. The PRESS Act, which the U.S. House passed in January, is a start. It would protect journalists from being forced to disclose their sources. The Senate should move to pass it, and quickly. But it is not enough. There needs to be more robust legislation, like that which the EU recently passed, legislation that protects whistleblowers who are disclosing information in the public interest, even when they disclose it to the press.
Democracies only function when with robust freedom of the press. But the press can’t do its job if people won’t speak to them. And people won’t speak to them if the result of doing so is prison.
Lawlessness like Littlejohn’s may be a threat to democracy, but without us having such information to hold the richest and most powerful accountable, there is no democracy.
Gibson is the legal director for The Signals Network, a U.S.-based nonprofit that operates internationally to hold powerful institutions accountable by protecting whistleblowers who speak out about wrongdoing.