By Jing-Zhi Wong
Under the US Obama Administration, whistle-blower protections and rewards inflated substantially under the 2010 Dodd-Frank Act. The Act provides anti-retaliation protection and certain monetary rewards payable to eligible whistle-blowers who voluntarily provide original information that leads to successful prosecutions of over $1 million. This has led to several payouts in recent years in excess of tens of millions. All these, however, might be set to change with Donald Trump issuing an executive order reviewing federal regulation of the financial services sector, fulfilling election campaign promises of ‘dismantling’ the Dodd-Frank Act, exposing whistle-blowers to employer retribution.
The incentive of receiving a portion of the monetary sanctions has Medieval English roots. A writ of qui tam is a writ whereby a private individual who assists a prosecution may receive all or part of the penalty imposed. In the mid-12th century, there were few means of enforcing the statutory law. There was no functioning police force and very few law enforcement officials on the King’s payroll. Statutes primarily dealt with raising revenue for wars and conquests, regulating trade, requiring religious observance, protecting public morals, etc. There were few, if any, who were interested in enforcing them. The monetary reward from bringing actions on behalf of the Crown, helped incentivise the administration of justice and impose checks and balances on public servants.
This medieval common law tradition was susceptible to widespread abuse. Informers engaged in trumping up charges, perjury and extortion by enticing people into committing offences so that they could prosecute them and receive the reward. This is seen in Oliver Twist, where:
On Sunday during church time, Charlotte pretends to faint in front of a pub and Noah gets some brandy to revive her. They then report the establishment for selling a drink and are awarded half of the fine.
Blackmail was rife as a result of the Popery Act 1698, for there was a £100 reward for apprehending a ‘Popish Bishop or Priest’. Catholics were placed at the mercy of common informers who harassed them for the sake of gain. Sir Edward Coke disdainfully referred to the common informers as:
Viperous Vermin … who under the reverend mantle of law and justice … vex and depauperize the subject … for malice and private ends, never for the love of justice.
In this day and age, whistle-blowing for reward may not be the best public policy in serving justice in light of the threats of espionage and leaking of national secrets, etc. The US in this regard, appears to be moving away from this medieval practice of encouraging whistle-blowing for reward.
Moving away from qui tam action under the Dodd-Frank Act however, does little to discourage whistle-blowing for reward, for qui tam action can still be brought under the False Claims Act. This instead, seems to be a concerted effort to thwart protection schemes for people who reveal or attempt to reveal serious wrongdoing in the public service. Following the firing of FBI Director James Comey over investigations into President Trump’s alleged collusion with Russia in meddling with the elections, Trump tweeted:
Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!
The existence of such tapes could potentially lead to Trump’s impeachment. In light of Comey testifying before Congress, one might speculate that he was fired because he attempted to reveal potential wrongdoing? Did President Trump attempt to obstruct justice ultra vires by unduly influencing the FBI to end inquiries into his alleged wrongdoings?
These allegations, if true, undermine the Rule of Law – principles of governance agreed to by all members of the UN General Assembly. These principles include “creating and maintaining conditions which will uphold the dignity of man as an individual, recognising his civil and political rights essential to the full development of his personality”. An aspect of the Rule of Law is the provision of adequate safeguards against abuse of power and the autocratic exercise of power by the Executive, whereby all persons, including the State itself, are accountable to just, fair and equitable laws and are entitled without any discrimination to equal protection of the law. To put it succinctly, these principles can be interpreted in terms of Roosevelt’s Four Freedoms – freedom of speech and religion, freedom from want and freedom from fear.
Whistle-blowers’ freedom of expression are worthy of protection, even when legitimate national security considerations are in play. Society should be able to enforce checks and balances on public administration, safeguard civil and political rights, and as Enlightenment scholars like Milton and Mill posit, scrutinise and discover truths through the freedom of expression (and whistle-blowing). Within the confines of the Rule of Law, national security cannot be used as the sole justification for preventing disclosures of illegalities or wrongdoing.
The US’ standing in the international community on upholding the rule of law hangs in the balance. Exactly how the Trump Administration will resolve these issues remains to be seen.
Jing-Zhi (Benjamin) Wong is a third-year Engineering Science and Law and Society major at The University of Western Australia. He enjoys reading about historical analyses of English law and jurisprudence, and hopes one day there will be similar discourses on the history of International Law.
 Dodd-Frank Wall Street Reform and Consumer Protection Act (US);
 Anti-Retaliation provisions of the Act apply only if an individual provides information to the SEC; Digital Trust Realty, Inc v Somers, No. 10-1276, (02/21/2018); Lloyd Chinn and Meika Freeman, ‘U.S. Supreme Court Holds That Anti-Retaliation Provisions of Dodd-Frank Apply Only to Whistleblowers Who Report to the SEC’, in Proskauer Rose LLP, Whistleblower Defense (online) <https://www.whistleblower-defense.com/2018/02/23/u-s-supreme-court-holds-that-anti-retaliation-provisions-of-dodd-frank-apply-only-to-whistleblowers-who-report-to-the-sec/>.
 Latin for ‘who as well for our lord the king, as for himself, sues’, or simply put, bringing actions on behalf of the crown.
 An Act for the preventing the growth of popery (1698) 11 Will. III. c 4, s 1.
 False Claims Act (US) 31 U.S.C ss 3727-3733.
 Latin for ‘without authority’. This is with reference to Article II Section 4 of the US Constitution; John R Vile, A Companion to the United States Constitution and Its Amendments (Praeger, 4th ed, 2006) 80.
 United Nations General Assembly Resolution 67 (1)
 JF Garner, Administrative Law (Butterworths, 2nd ed, 1967) 20-22.