Federal officials are prohibited by law from taking retaliatory action against whistle blowers, but the ATF’s top lawyer, Stephen R. Rubenstein, appears to have advised the acting director on just how to take such retaliatory action. Stephen Rubenstein purposefully phrased his answer to fit within two narrow exceptions found within 5 U.S.C. 2302 which allow an agency to take personnel action when a disclosure threatens (1) harm national security, or (2) harm foreign relations. Then, Stephen Rubenstein appeared to have instructed his subordinate attorneys to threaten retaliation against ATF personnel under congressional subpoenas if they disclosed the illegal activity that had already occurred at ATF.
Stephen Rubenstein’s willingness to provide cover for agency leadership reflects poorly upon his judgment as an attorney, and in my opinion, Stephen Rubenstein’s attempt to assist his client in retaliating against agency whistle blowers violated his ethical obligations as an attorney to his client. Stephen Rubenstein’s client was always the United States of America, not whatever political appointee or acting SES happens to be filling a chair at any given time.