by Stephen Kohn
The military court consisted only of Hopkins’ supporters, including his own son. Hopkins was permitted to personally question the accused. If found guilty, Marvin’s only appeal would be to Hopkins himself. Marvin’s sole crime: having “signed” “scurrilous papers” “against his Commander in Chief.”
At his court-martial Marvin stood strong. He did not plead for mercy or back down from his actions. Indeed, he readily admitted to his crime of signing the petition against Hopkins. He told the prosecutors that the accusations brought forth against the commander “were of such a nature that we thought it was our duty to our Country to lay them before Congress.”
Hopkins grilled Marvin as to who else had signed the petition and what specific information was provided to Congress. Marvin would not turn in his fellow sailors or tip off Hopkins as to the allegations provided to Congress. Instead, he stated, “I refuse answering to that until such time as I appear before Congress or a Committee authorized by them to inquire into the affair.”
It was no surprise when Marvin was found guilty of treating the commander with the “greatest indignity” by “signing and sending to the Honorable Continental Congress several unjust and false complaints.” Commodore Hopkins immediately affirmed the findings of the court-martial and ordered Marvin expelled from the Navy. America’s first whistleblower was fired from his job.
“Your petitioners, not being persons of affluent fortunes, but young men who have spent most of their time in the service of their country . . . finding themselves arrested for doing what they then believed and still believe was nothing but their duty . . . do most humbly implore the interposition of Congress in their behalf.”
Richard Marvin and Samuel Shaw, Letter to Congress sent from jail (1778)
Hopkins was not satisfied with merely firing the ringleader of the whistle-blowers. On January 13, 1778, the former commodore sued the ten whistle-blowers for conspiracy and criminal libel. Hopkins demanded ten thousand pounds in retribution, and the whistleblowers could be jailed if found guilty. Hopkins hired a well-known Rhode Island attorney, Rouse J. Helme, and filed his “writ of attachment” in the Rhode Island Inferior Court of Common Pleas. Only two of the ten sailors, Shaw and Marvin, were actually served with the complaint. The others resided outside of the jurisdiction of the Rhode Island court. Therefore, they escaped the retaliatory lawsuit.
Even though the United States was still in the middle of its War for Independence, Hopkins used his resources and connections in an attempt to destroy the lives of two sailors who had the courage to file allegations of serious wrongdoing with the Continental Congress. Shaw and Marvin were both arrested, held in jail, and forced to post an “enormous bail.”
Shaw and Marvin were not men of means. They had nowhere to turn, except to plead for help from the Continental Congress. On July 8, 1778, the two whistleblowers wrote an impassioned letter to the Congress:
Your petitioners, not being persons of affluent fortunes but young men who have spent most of their time in the service of their country in arms against its cruel enemies since the commencement of the present war, finding themselves arrested for doing what they then believed and still believe was nothing but their duty, held to bail in a state where they were strangers, without connections that can assist them in defending themselves . . . against a powerful as well as artful person who by the advantages of his officers and of the present war hath amassed great wealth—do most humbly implore the interposition of Congress in their behalf in such way and manner as the wisdom of that most august body shall direct and order . . .
The petition was read to Congress on July 23, 1778. A special “Committee of Three” was appointed to review the matter. After a seven-day review, the committee reported back to the Continental Congress. History was made.
On July 30, 1778, the Continental Congress came to the defense of Marvin and Shaw. The Congress, without any recorded dissent, passed a resolution that encouraged all citizens to blow the whistle on official misconduct. Perhaps for the first time in world history—and unquestionably for the first time in the history of the United States—a government recognized the importance of whistleblowers in exposing official misconduct of high-ranking officials working for the government itself. The act of Congress could have been written today:
That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any persons in the service of these states, which may come to their knowledge.
The Continental Congress was also sympathetic to the personal plight of Shaw and Marvin. The Founding Fathers understood that finding whistleblowers guilty of criminal libel was counter to the framework of the new Republic. Congress authorized the government to pay the legal costs and attorney fees for Shaw and Marvin so that the two men would have excellent lawyers and be able to fully defend themselves in the Rhode Island courts.
Moreover, the Congress did not hide behind government secrecy edicts, even during time of war. Instead, the Congress authorized the full release of government records related to the appointment and removal of Hopkins as commander in chief, as well as the various papers of the Marine Committee as related to the information provided by the ten sailors. No “state secret” privilege was invoked, and Marvin and Shaw did not even need to use a Freedom of Information Act to obtain documents necessary to vindicate their whistleblowing.
Just like in modern whistleblower cases, documentary evidence can make or break a case. In 1778, the Founding Fathers understood this simple fact and made sure that Marvin and Shaw had the necessary evidence to defend their actions before a jury of their peers. The Founding Fathers went beyond passing a law endorsing whistleblowers. They spent scarce federal monies to defend and protect the sailors who had the courage to blow the whistle to the Congress.
With the help of the Congress, Shaw and Marvin were able to retain top-notch legal assistance. Their main lawyer at the trial was William Channing—a distinguished Rhode Island attorney who had been recently elected as the attorney general for the state. His father-in-law was William Ellery, one of the signers of the Declaration of Independence. Interestingly, Ellery had attended the initial examination of Grannis when he testified before the Marine Committee and was the member of the Congress responsible for transcribing Grannis’s testimony.
The criminal libel trial lasted five days. Shaw and Marvin “relied almost entirely for their case upon” the information provided to them by the Congress, including “copies of letters from President John Hancock and others” to Commodore Hopkins, along with the “depositions of the officers and men on the Warren who had signed the petition to Congress against Hopkins.”
The jury ruled for the whistleblowers. The defendants were vindicated and Hopkins was ordered to pay their court costs.
In May 1779, the Congress “examined the accounts of Samuel Shaw and Richard Marvin for expenses incurred in defending an action at law brought against them by Esek Hopkins” authorized the payment of “fourteen hundred and eighteen dollars and 7/90 to be paid to Mr. Sam. Adams,” of which $500 was set aside for William Channing.
Despite his so-called “court-martial,” Marvin also received his full sailor’s pension for his service during the Revolutionary War.
Whistleblower Day
The Founding Fathers’ endorsement of whistleblowers during the height of the American Revolution is a profound testimony to American Democracy and the responsibility citizens have to report abuses of authority and violations of law. Since this history was “rediscovered” with the initial publication of the Whistleblower’s Handbook in 2011, the U.S. Senate has repeatedly passed resolutions honoring July 30 as “National Whistleblower Appreciation Day.”
On July 7, 2016, the Senate unanimously passed the following resolution:
Whereas, in 1777, before the passage of the Bill of Rights, 10 sailors and marines blew the
whistle on fraud and misconduct harmful to the United States;
Whereas the Founding Fathers unanimously supported the whistleblowers in words and deeds, including by releasing government records and providing monetary assistance for reasonable legal expenses necessary to prevent retaliation against the whistleblowers;
Whereas, on July 30, 1778, in demonstration of their full support for whistleblowers, the members of the Continental Congress unanimously enacted the first whistleblower legislation in the United States . . .;
Whereas whistleblowers risk their careers, jobs, and reputations by reporting waste, fraud, and abuse to the proper authorities;
Whereas, when providing proper authorities with lawful disclosures, whistleblowers save taxpayers in the United States billions of dollars each year and serve the public interest by ensuring that the United States remains an ethical and safe place . . . .
Now, therefore, be it
That the Senate—
(1)designates July 30, 2016, as “National Whistleblower Appreciation Day”; and
(2)ensures that the Federal Government implements the intent of the Founding Fathers, as reflected in the legislation enacted on July 30, 1778, by encouraging each executive agency to recognize National Whistleblower Appreciation Day by—
(A)informing employees, contractors working on behalf of United States taxpayers, and members of the public about the legal rights of citizens of the United States to “blow the whistle” by honest and good faith reporting of misconduct, fraud, misdemeanors, or other crimes to the appropriate authorities; and
(B)acknowledging the contributions of whistleblowers to combating waste, fraud, abuse, and violations of laws and regulations in the United States.
As equally remarkable as the historic 1778 whistleblower resolution are the actions taken by the First Congress of the United States. Numerous drafters of the U.S. Constitution were prominent members of the First Congress, including Elbridge Gerry, Rufus King, Robert Morris, and James Madison, and its actions are often cited as evidence of the vision our Founding Fathers had of American Democracy. At the heart of this vision were whistleblowers.
In 1999–2000, when the U.S. Chamber of Commerce and its government-contractor allies raised a Supreme Court challenge to the constitutionality of the False Claims Act (the most effective whistleblower law in the United States), Supreme Court Justice Antonin Scalia rebuked their attack, extensively citing the actions of the First Congress. He pointed out that on July 31, 1789, our Founding Fathers enacted the first of eighteen qui tam laws mandating that whistleblowers (informants) whose original information resulted in a successful enforcement action be entitled to a percentage of the collected proceeds. This is the precise model used in the False Claims Act and the other very successful whistleblower reward laws today.
The Founding Fathers looked toward the People to be a full partner in enforcement of law—and included whistleblower reward provisions in the major revenue-producing and government accountability laws enacted by the First Congress. The eighteen qui tam laws established the right of whistleblowers to obtain monetary rewards for disclosing violations of customs laws (still covered under the False Claims Act), reports of bribery, disclosure of illegal conflicts of interest, reporting criminal larceny and the receipt of stolen goods, and providing evidence of improper lending by the Bank of the United States. These rewards generally were set at 25 to 50 percent of the monies collected from the wrongdoer.
Whistleblowers and the Birth of the First Amendment
It was not by accident that the Founding Fathers, some of the very people who voted to defend the Warren whistleblowers, enshrined “freedom of speech” and the “right to petition” as the first governing principle of the Bill of Rights: “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people . . . to petition the government for a redress of grievances.”
Whistleblowing embodies the heart and soul of the First Amendment. It establishes the right of the people to expose wrongdoing and empowers them with the right to demand that powerful leaders remain accountable. The Warren incident demonstrates that the Founding Fathers were not only aware of “whistleblowing,” but that they strongly supported it.
Former Supreme Court Justice Louis Brandeis hit the nail on the head when he described the early American political culture and influential personalities whose struggles led to the passage of the First Amendment: “Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.”
Justice Brandeis went on to describe those who fought for the First Amendment as: “[C]ourageous, self-reliant men” whose “confidence in the power of free and fearless reasoning” rested at the heart of “popular government. . . . They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth . . . they knew that order cannot be secured merely through fear of punishment . . . that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies. . . . They eschewed silence coerced by law . . .”
Justice Brandeis could well have been referencing the sailors and marines on the Warren, who risked courts martial and criminal libel charges to blow the whistle on their commander in chief. His description seems to fit the personality of the courageous whistleblowers far more than the nameless and faceless bureaucrats who harass or make decisions to fire these employees.
As understood by the Founding Fathers, the First Amendment established a credo at the very heart of American politics that valued the contributions of whistleblowers: “The dominant purpose of the First Amendment was to prohibit the widespread practice of government suppression of embarrassing information.”
If whistleblowers are silenced, if voters cannot learn about the corruption of their leaders, if investors cannot learn the truth about companies they rely upon for their retirement security or their child’s education, what then is the future of the American Dream? On the reverse side, if ordinary workers are empowered to do their job honestly, even when they are faced with pressure to cut corners on safety, sell defective products, or lie to obtain lucrative government contracts, what then of the American Dream? Is it one to be proud of—to aspire toward?
In Conclusion
Corruption is a cancer on all Democratic institutions. It converts the “rule of law” to the “rule of backdoor influence.” Greed trumps justice.
When the United States was born, the Founding Fathers believed, almost religiously, that freedom of speech would protect the people from corruption. So much so that in the middle of the Revolution they protected whistle-blowers who exposed malfeasance in the top leadership of the newly created Continental Navy. After the Revolutionary War they incorporated the right to criticize the government and expose wrongdoing into the heart of the First Amendment to the Constitution and enacted numerous qui tam laws. During the Civil War, when the existence of the United States was again under attack, the leaders of the Union enacted the first modern whistleblower law (the False Claims Act) to empower citizens to defend key laws in court, use these legal proceedings to expose and defeat corruption in public contracting, and obtain monetary rewards for taking the risk to expose wrongdoing. The role of the people in defending democratic institutions from the destructive impact of corruption was clearly recognized, endorsed, and encouraged by the founders and saviors of American democracy.
Over the past fifty years, a national framework for protecting people who courageously step forward and report corruption has developed. The framework is extremely complex and consists of numerous federal and state laws, but is also plagued by loopholes and technicalities that cause unnecessary hardship to many employees.
But despite many personal hardships, change has come for whistleblowers. There are now
qui tam and reward laws covering a sizable segment of society. The False Claims Act and IRS whistleblower law now cover fraud in the public-sector economy. The Dodd-Frank Act now covers fraud in trading securities and commodities. With the auto safety law, the Act to Prevent Pollution from Ships, and the Lacey Act, whistleblower reward laws are also covering areas of public heath and safety and the environment. State governments are slowly following the federal lead, and a majority of states now have qui tams covering public procurement.
Slowly, antiretaliation laws are being modernized. The new laws passing through Congress almost uniformly permit employees access to federal court proceedings and reasonable damages. Reforms are slowly fixing infamous tricks and technicalities used to undermine whistleblowers—such as mandatory arbitration agreements and the failure to protect internal disclosures.
Today the key to obtaining protection as a whistleblower is navigating the maze: finding the best laws, becoming fully aware of the traps and pitfalls facing any whistleblower, and ultimately using these laws effectively to ensure real protection. At some point there will be a change in corporate culture. At some point corporations, government agencies, and most judges will acknowledge the benefits of strongly promoting employee disclosures of wrongdoing. We are not there yet—not even close. But the legal framework for changing this culture is coming into place, and a growing number of whistleblowers are landing on their feet.