Yesterday the Inspector General of the Department of Defense (DoD) issued the results of their “Whistleblower Reprisal Investigation” on the complaint filed by Col. Yevgeny S. Vindman, U.S. Army. The inspectors found that based on “the preponderance of the evidence, that the Complainant was subject of unfavorable personnel actions from administration officials.” They also “concluded, based on a preponderance of the evidence that these actions would not have occurred or been withheld absent the Complainant’s protected communications.”
The IG closed their report with, “We make no recommendation with respect to the Complainant, who has been promoted to the rank of Colonel and whose performance record has been corrected. We make no recommendation with respect to the various White House officials, who did not work in the DoD, named in this report. These administration officials have departed their positions in the White House.”
Vindman and his twin brother were both assigned to the White House and National Security Council (NSC), and both were removed in February 2020, following his brother’s 2020 testimony during the late-2019 impeachment hearings. Individuals within the White House hierarchy, including his direct supervisor and his reviewing officer, crafted the ensuing performance review (OER) for the incomplete period of time in a manner that was 180-degrees from those received by Vindman both prior to or subsequently, and with administrative and procedural errors.
Vindman’s protected communications
Vindman filed a complaint that “alleged that the officials named above reprised against him because he made protected communications and because of his association with his twin brother’s protected communications to Members of Congress.” Those protected communications alleging crimes had been committed by the former President, that officials of the NSC engaged in sexist behavior, and misused their positions in having personnel conduct personal errands, and when he reported personnel within the NSC had violated the Antideficiency Act.
DoD’s investigation finds retaliation
What the investigators found, however, was ample evidence of a motive to retaliate, which “generally exists when protected communications allege wrongdoing that, if proven, would adversely affect the subject.” The investigators noted that neither his rater, NSC attorney Michael Ellis, nor his reviewer, NSC attorney John Eisenberg were cooperative. Further, National Security Advisor Robert O’Brien removed Col. Vindman from the NSC and had him escorted from the premises. When asked about his decision to remove the Vindman brothers, he stated, “Those were my decisions, and I stand by them.”
The U.S. Merit Systems Protection Board has in the past provided whistleblower protection to individuals who are relatives or close friends of a whistleblower, which applies to Vindman, given his brother’s testifimony before congress. The protections of “associational retaliation” was not considered “because of the strength of evidence regarding reprisal for direct retaliation is so strong.”
The report highlights the long tail of repercussions associated with retaliation. The report said, “While the Complainant’s career may not appear to have been adversely affected as he has since been promoted to the rank of Colonel, his career is not over. The retaliatory actions taken by Mr. Ellis and Mr. Eisenberg could prove to be detrimental to the Complainant for the remainder of his career.”
