"You Won't Be Personally Liable": What the DHS Whistleblower Disclosure Means for Federal Employees Given a Questionable Order
When agency leadership tells federal employees "you won't be personally liable," it is worth asking what that sentence actually promises. A whistleblower disclosure made public Monday alleges that Department of Homeland Security leadership told its own officers exactly that. Hundreds of U.S. Citizenship and Immigration Services fraud detection officers, according to the disclosure, were pulled onto what was called the Unlawful Voter Initiative and reassured about their personal exposure. Whatever agency you work for, the lesson here applies to you.
What the Whistleblower Alleges
According to the disclosure, USCIS fraud detection officers were told to drop their existing work, watch a single training video, and begin the new assignment the following Tuesday. The alleged pace was forty people a day, roughly twelve minutes each, to decide whether a human being is a U.S. citizen, using data the training itself reportedly described as compiled with "supplemental magic."
The disclosure also describes how voting history was checked: by entering a person's personal information into a state website. Virginia's site requires the user to attest that they are the voter or have the voter's permission. The whistleblower says officers were directed to run the searches anyway, potentially thousands of times, and that leadership assured them they would not be personally liable.
DHS has responded that the data was publicly available, that the work was "not rocket science," and that there was no quota on findings of criminality. These are allegations, not findings. The senators who released the disclosure have asked for answers by September 21.
What "You Won't Be Personally Liable" Leaves Out
Was leadership lying? There is no way to know from the outside, and it is possible they believe what they said. But the reassurance omits several things a federal employee should understand before relying on it.
Supremacy Clause Immunity Is a Defense, Not a Shield
Federal officers do have a potential defense to state criminal charges, known as Supremacy Clause immunity. It works only if federal law authorized what the officer did and the officer did no more than was necessary. In this situation, both of those questions are exactly what is in dispute.
Just as important, it is a defense. You raise it after you have been charged, in your own name. The federal government then decides whether to provide you a lawyer. And no one in Washington can pardon a state crime.
The Agency's Lawyers Are Not Your Lawyers
Agency counsel represents the agency. Notice that the whistleblower in this case had their own attorney. When leadership feels the need to promise that you will not be liable, that is not reassurance. It is a signal that someone has already thought about the question.
The Statute That Protects a Refusal
This is what 5 U.S.C. § 2302(b)(9)(D) is for. It makes it a prohibited personnel practice to take a personnel action against an employee for refusing to obey an order that would require the individual to violate a law, rule, or regulation.
The key words are "would require." If you are wrong about the law, a refusal is insubordination, and the protection does not apply. Do not wing it.
What to Do If You Are Handed an Order Like This
Get the order in writing. Ask for the legal guidance behind it in writing. That night, at home, write down what you were told, when, and by whom. If you have already run the searches because counsel said you could, that contemporaneous note is your proof of what you were told. This is not about panic; it is about paper.
And if you are the federal employee in that chair, do not decide alone. Talk to your union, your representative, or a federal employment attorney before you act, not after. Southworth PC offers free consultations, and our attorneys for federal employees regularly advise on prohibited personnel practices and whistleblower matters.
If you are a USCIS employee who sat through that training video and think this account gets something wrong, Shaun wants to hear it. If the information is sensitive, message the firm privately.
Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation.