Ever since whistleblowers emerged with information that formed the basis of the impeachment inquiry, the president and his supporters have cast aspersions on their motivations. Although it is unsurprising to see this president attack people speaking out against him, it is also, more generally speaking, neither a surprising legal tactic nor likely to be an effective one.
I started my career representing plaintiffs in whistleblower and class action lawsuits. This past year, however, I have primarily (although not exclusively) been representing defendants. Having worked on “both sides,” one thing is clear: when a person or business encounters potentially harmful accusations, whether or not they have merit, the initial reaction is not to simply mount a level-headed defense. Rather, people and businesses alike often go into “attack mode.”
When I represented whistleblowers, I litigated cases filed under the False Claims Act (FCA), a federal law enabling those with insider information—often the defendant’s employees or ex-employees—to sue recipients of government payments under fraudulent pretenses, seeking a recovery on behalf of the federal government. FCA lawsuits often involve contractors accused of fraudulently bilking the government, or healthcare providers accused of defrauding taxpayer-funded programs. The FCA entitles whistleblowers themselves to recover portions of a lawsuit’s proceeds, incentivizing whistleblowers to sue, should altruism alone not suffice.
Defendants frequently argue that whistleblowers were merely bad or disgruntled employees (or ex-employees) with an axe to grind. Sometimes defendants claim whistleblowers are responsible for the very conduct subject to the lawsuit and may even countersue on that basis. Defendants go to great lengths to attack whistleblowers, including investigating social media activity, political affiliations, and prior legal histories.
When I primarily represented plaintiffs, I reacted negatively when defendants “made things personal.” I have now seen things from the other side. When my clients—individual or corporate—learn they are being sued, the initial reaction is rarely rational. Because millions of dollars can be at risk, the initial reaction is often to question the plaintiffs’ motives—even if they have a strong defense. And who can blame them? The last time you were accused of something, didn’t you want to lash out at your accuser?
Clients often want to put an adversary’s personal motivations at issue. Sometimes this is advisable, such as when the opposition previously lied in a lawsuit or to the media. But even when spotlighting an opponent’s past makes sense, personal factors alone rarely win the day. Lawsuits—regardless of parties’ motivations—are almost always resolved on the legal or factual merits.
My experience informs how I view the Trump impeachment inquiry. The whistleblowers could have animus toward the president (if they didn’t before, they likely do now!). But even if they had personal motivations, if their allegations have merit, why should that matter? The whistleblowers’ attorneys likely advised their clients that their identities could emerge, and they could come under attack. And unlike FCA whistleblowers, impeachment proceedings do not entitle these whistleblowers to a payday. So there is reason to believe that their claims are not fabricated, because who would subject themselves to uncompensated scrutiny without some factual support?
As for the president, condemning critics is nothing new. However, as to the whistleblowers, the president is not simply the president—he could be the subject of an impeachment trial. And the president’s initial attack-oriented response resembles many defendants I have encountered—whether client or opponent. The attacks are amplified because his platform is bigger than almost anyone’s, and that is a reason many wish he would not attack so aggressively. But these attacks are unlikely to benefit the president’s legal arguments and viewing him as the defendant he might soon be, he is responding like many—individual or corporate—do when sued.
In the end, whistleblowers are allowed to have personal motivations, and defendants can be expected to lash out upon being sued. The emotional reactions to the whistleblowers’ allegations resemble the typical reactions to any lawsuit, just under a supercharged media microscope. In most lawsuits, however, personal atmospherics do not decide the case; the merits do. So, while the impeachment inquiry will remain supercharged, Americans can hope that this case progresses like most, has its day in court, and gets resolved on its merits.