Stephen Kohn: The Untold Stories of the Whistleblowers of 1777 (Transcript)

Here is the full transcript of whistleblower attorney Stephen Kohn’s TEDx Talk: The Untold Stories of the Whistleblowers of 1777 at TEDxWilmingtonSalon conference. This event took place on July 30, 2016 at Wilmington, Delaware. To learn more about the speaker, read the bio here.

 

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Stephen Kohn – Whistleblower attorney

1999, in the fall, I’m sitting in my office, literally, minding my own business. And a flash! The US Supreme Court is going to hear whether America’s most important whistleblower law is constitutional. It’s a law designed to empower whistleblowers, everyday, ordinary citizens, to expose fraud, hold corporations accountable and obtain rewards and protection. Truly the best law, designed to root out fraud and government contract. So someone get a procurement or a contract And they are ripping it off, that’s the law.

And big business hated this law. And the Chamber of Commerce and all of their allies filed briefs, and convinced the US Supreme Court, known as a very pro-business court at the time, to hear whether it was constitutional for citizens, to stand in the shoes of the government and challenge fraud as whistleblowers. I was like, wow!

This is big. This is a turning point, because if this law is struck down, whistleblowers will be doomed. But if this law is upheld, and these powers are reflected in our constitution, this is a big deal.

So I call up my interns, I say, look we have to fight back. And we have to look at places in history where our founding fathers or our leaders would’ve looked to the people like whistleblowers to defend our constitutional government. I said, check it out, see what you can find. And I sent them off to the library. Specifically, look at the US revolution, because our founding fathers, for all of their flaws, they understood the power of people, and the importance of the role of the citizen in government. Check it out.

Well, about a day or two later someone comes back with a big smile on their face, and they found it. A whistleblower law, passed unanimously by the founding fathers on July 30, 1778. Wow! I put it in the brief, we filed it up.

Ten years later, I’m working on a book called “The Whistleblower’s Handbook“. And I remembered this resolution and I’m saying: Why would this have been passed. What was going on in 1778 to rally up whistleblowers? So, once again I sent my law clerks out. Rhode Island Historical Society where the incident arose. Library of Congress, National Archives, the records of the Constitutional excuse me, of the Continental Congress — What happened?

And there the story of America’s first whistleblowers just unfolded. And it’s why we celebrate whistleblower day on July 30. These were America’s first whistleblowers — common, everyday, working people volunteers, into the continental navy, they were marines and sailors, patriots who were now enlisted to fight the British. And you can see them here.

They served on a frigate known as the Warren. And it was stationed in Providence Harbour, in February of 1777. About six months after the declaration of independence was signed. And these 10 sailors met secretly and signed a petition, not against the British, but against the head of the Navy, against the Commodore of the entire Unites States Navy who have been appointed by the Continental Congress, whose brother had served as a Governor of Rhode Island and a signer of the declaration of Independence. A very powerful person within the United States, in the United States Government.

And they signed a petition, secretly and sent one of their members to jump ship to present this petition to the Continental Congress. And here you can see this is from the actual petition it’s all laid out. The wrongdoing they were exposing was war profiteering, was mistreatment of British prisoners in time of war.

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Now we can think about today, and how that might be reacted to. So let’s just think. I’ve asked this question time and time again. What happened to these 10 sailors, February 1777. What happened to Captain [John] Grannis when he jumped ship, without permission and went to Philadelphia and presented the petitions.

I’ve asked it many times, and it’s something to think about. And I polled audiences. Were they hung? Were they court marshalled? Or was there a parade down main street Philadelphia, maybe starting right here in Wilmington, where everyone said Ye, the Whistleblowers! How were they treated? Something to think about.

Well, the Continental Congress read the petitions, all the affidavits of the whistleblowers, and they suspended the Commander of the Navy. They acted on that information. And then they fired him.

Well, the Commander was not a happy fellow. And the boat was sitting there in Rhode Island where he has a lot of friends and connections. And he issues out papers and sues the whistleblowers for criminal liable, which, back in the day, you could sue someone and they get arrested and thrown in jail. And they caught two of the whistleblowers and threw them in jail in Rhode Island. This was the former Commander but he still had his friends.

Then as the story unfolds, I find a letter written from the prison to the Continental Congress, pleading for help. And I want to tell you I’ve represented whistleblowers for over 30 years. And I’m reading this letter, and it’s like, I’ve read this before, the same sentiments, the same issues that whistleblowers today have raised time and again.

This is their letter. And they talk about that they’re not affluent people, they’re young men who are sacrificing for their country. And they’re held to bail, they have no connections, against a powerful enemy. And that’s how it always is with whistleblowers With whistleblowers, it’s a working person, an employee, and the person they’re blowing the whistle on has the connections, has the wealth. That’s what you see, that’s what’s unfolding right here, in 1778, as these guys were held in jail.

They also state in their letter that they were doing their duty. And I’ve heard that so many times from whistleblowers, we’re only doing our duty as citizens. So this letter goes to the Continental Congress. They meet again, and now they deliberate what should they do? I think it went for seven days of a review, and then on July 30 1778, United States passes its first whistleblower law, and there it is on the screen. And it is — this is what our founding fathers say it is the duty of every inhabitant of the United States, not citizen, inhabitant to give the earliest information about frauds, misdemeanors and misconduct and this sentiment, these words are reflected in modern whistleblower laws. They got it right, this was unanimously passed and signed by John Hancock himself. We went and found all the records.

And then they did something that I found just even more remarkable. They released all the records. They did not hide behind State secrecy. And remember, there were allegations that British prisoners were being mistreated, that the head of the Navy was corrupt. But they didn’t hide it. There was no freedom of information act, but they released it, they were willing to accept that criticism. And they gave it, sent it all down to Rhode Island, and then they did something that has never happened since. But I am waiting, because I think it’ll be good, if they do, as a lawyer I want them to do this — which is, they allocated money to pay for lawyers to represent those two whistleblowers so they would win their case. This is the Continental Congress in 1778, and I want to tell you they just came back to Philadelphia, the British had seized Philadelphia; they were out, they just came back within a month or two.

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These founding fathers risked it all. They knew they would’ve been hung for treason, if they lost that Revolution. These aren’t politicians, looking about a poll or an election or a contribution. These were people who had risked it all, and, despite of that they were willing to take and everybody knows in history there wasn’t that much money, money was a big deal, at the time of the Revolution.

Yet they were willing to spend money to hire lawyers, and they hired a great lawyer, who would eventually become the Attorney General of Rhode Island to defend those whistleblowers and those whistleblowers were found not guilty.

Now, I find that very hard to believe. So I sent my law clerks now to the National Archives, to the Ledger Book of the Continental Congress. I wanted to see if they actually wrote the check, and it was reflected in the minutes, they did, and yes they did: $1418, they wrote the check, sent it out.

So, that is the origin of whistleblowing in the United States, that is our tradition, that is our culture, that is the meaning behind the first amendment. And that is the history that we need to reclaim. As whistleblowers are retaliated against, as they are charged with crimes — this is the history we need to reclaim.

But getting back to, a minute, to the False Claims Act. We filed a brief a friend of the court, amigos brief and we won that. 90 the US Supreme Court upheld the constitutionality of the False Claims Act. Today, our best whistleblower law. And let’s see what happened.

Just so you know, as False Claims Act was our second laws passed by Abe Lincoln, because Lincoln understood the importance of rallying up the people to defend our liberties, he understood it well.

And this is from a year ago. Attorney General – “the impact of that law is nothing short of profound.” And this is the Assistant Attorney General in charge of the Law: “The most powerful tool the American people have to defend itself from fraud.” And I love this quote because it’s, first of all it’s true but second, he uses the word the most powerful tool, they got it right empowering whistleblowers, insiders, the people with the know, to expose wrongdoing. That is power. And that has translated today into the most effective antifraud law in this country. And I say to people, time and again, it’s not whether you like whistleblowers or not, get over it. Do you want effective antifraud programs? You need whistleblowers.

And this is just the monetary value of the whistleblowers. You can see what happened over time under the False Claims Act where they are now collecting billions. I want to tell you, I do those cases and they’re amazing. You can – you can hold the criminals accountable pulling off the bulletproof vest that we’re sold to the government that didn’t work, hold them accountable, bust those companies. Just recently, a manager was sentenced to 26 years in prison for defrauding the United States, in a terrible fraud scheme. You can use the law, the whistleblower is the key. And it’s just amazing that today, July 30, is the day, that our founding fathers got it right.

Thank you so much.