One of the most crucial aspects of any clearance investigation is the SF-86 form that all applicants are required to fill out. It is an imposing, 127-page document that covers everything from past living addresses to foreign contacts. Because of the central role it plays in clearance adjudications, the SF-86 is not a form that should be taken lightly. The document itself has become a topic of media discussion after it was revealed that Attorney General Jeff Sessions did not disclose contacts with the Russian Ambassador on his SF-86. The discussion of the issue was short lived, however, as it was later revealed that Sessions’ staff had contacted the Department of Justice. Reportedly, Department of Justice attorneys instructed that he omit the contacts.
We at Compass Rose Legal Group believe that the affairs surrounding the Attorney General’s SF-86 serve as a valuable example of how to, and how not to, approach the SF-86. While the average clearance applicant will not face the same issues or media scrutiny as Jeff Sessions, his case provides a cautionary tale for all applicants. Accordingly, consider the following:
- Fill out your own SF-86 form. Once you sign and submit the form, you become responsible for its contents. This is not dissimilar from a tax form or contract. While it might be tempting to let a staff member or secretary handle the SF-86 for you, the level of detail required requires personal attention.
- Pay close attention to the wording of all questions: certain information is not required to be reported, and the questions note this. When in doubt, seek counsel. Similarly, for all applicants the SF-86 contains a section on mental health counseling. Depending on the section, an applicant may or may not be required to provide that information. Read this section carefully.
- Take time to fill out the form completely, accurately, and then re-examine it thoroughly before submission. Omissions, particularly if purposeful, can be a crime. Even if the omissions do not result in a criminal referral, missing information results in a weighty issue that security adjudicators can latch on to and question.
- When in doubt, seek counsel.
This article was prepared by Thomas Toman, National Security Investigations Intern.
National Security Law & Security Clearances Are Directly Impacting the White House
The current issues impacting the Trump White House have brought national security matters, the Intelligence Community, and security clearance adjudications into the spotlight simultaneously. Compass Rose Legal Group, PLLC is a law firm specializing in representing the Defense and Intelligence Communities, and we believe this overview will help simplify the chronology of events that have led to this increasingly complex matter unfolding as publicly as it has.
Notwithstanding the political implication surrounding these events, the facts are materializing into a case study of what federal employees, contractors, and members of the military ought not to do.
Who is Michael Flynn?
Michael Flynn was President Trump’s first National Security Advisor and former Director of the Defense Intelligence Agency (“DIA”). Flynn was removed from his position as DIA Director by then-President Obama, who cited policy disagreements between Flynn and the larger Intelligence Community. Subsequently, in 2016, Flynn was appointed as the National Security Advisor by Donald Trump; he served only 24 days before being asked to resign.
Flynn is currently at the center of a Justice Department investigation into Russian meddling in the 2016 election. Moreover, he is also under heightened scrutiny for accepting (and not reporting) money to lobby on behalf of Turkey. Reportedly, it is this information that he failed to disclose on his SF-86. His failure to report has provided prosecutors with leverage to force Flynn’s cooperation in the ongoing investigation.
Here is a brief timeline of the events that have led to his removal by President Trump, and the subsequent appointment of a Special Prosecutor:
- On December 10, 2015, Michael Flynn allegedly receives money from Russian officials during a trip to Moscow. The payment triggers a subsequent investigation by the Pentagon Office of Inspector General in April 2017.
- On August 9, 2016, Michael Flynn receives $530,000 dollars for lobbying work on behalf of a Turkish firm with strong ties to the Erdogan government in Ankara. The money was intended to go toward the production of a pro-Turkish government film, but no film is ever produced. General Flynn does not report this activity to federal lobbying authorities or register as a foreign agent until March of 2017.
- On November 8, 2016, Michael Flynn writes an op-ed in The Hill that supports the Turkish government’s crackdown on (allegedly) seditious elements. According to press reports, he shared a copy of this article with the Turkish firm behind his August payment before publishing it.
- In December 2016, Flynn begins communicating regularly with the Russian Ambassador to the United States, Sergey Kislyak.
- On January 4, 2017, the Trump transition team is first informed that Flynn is under investigation by the Department of Justice.
- On January 10, 2017, Flynn blocks a plan to arm Kurdish Rebels against ISIS, contrary to the recommendations of the Obama White House. This was viewed as a massive policy victory for Turkey, who opposes the Kurds. After Flynn’s resignation, the Trump White House began to arm the Kurds again.
- On January 26, 2017, Acting Attorney General Sally Yates warns White House counsel Don McGahn that Flynn has allegedly lied about his discussions with the Russian Ambassador. Yates reportedly supplied evidence that Flynn had discussed U.S. sanctions on Russia with the ambassador, which he had vehemently denied.
- On February 9, 2017, a Washington Post report reveals that Flynn lied to Vice President Mike Pence about his conversations with the Russian Ambassador by assuring him that sanctions were never discussed.
- On February 13, 2017, Flynn resigns following intense media scrutiny.
- On May 17, 2017, the Department of Justice appoints former FBI director Robert Mueller III to lead an independent probe into the Trump administration’s relationship with Russia.
This chronology of events was prepared by Thomas Toman, National Security Investigations Intern.
Compass Rose Legal Group’s Managing Attorney Andrew Bakaj is quoted in a Newsweek article discussing President Trump’s Tweet about the possible existence of “tapes” of their private conversations.
Specifically, Andrew responded to a question about the possibility of then-Director Comey recording private conversations with the President. Andrew is quoted saying:
“I’d find it hard to believe. Normally, such meetings are confidential in order to promote candid and honest conversations with the president,” said Andrew P. Bakaj, managing attorney of Compass Rose Legal Group, and former national security official who is a national security law expert. “That’s why you often hear executive branch officials decline to discuss personal conversations with the president.”
The full article can be accessed by clicking here.
At Compass Rose Legal Group, we handle security clearance cases throughout the Federal Government. Regardless of which Department or Agency we appear before, there is a major common theme running through the adjudication process. Obtaining a successful outcome means mitigating the concerns that the U.S. Government has in an individual’s ability to safeguard classified information.
Security clearances are a privilege and not a right, and there is no right to have the substance of the Federal Government’s concern litigated before any Federal Court. See Department of the Navy v. Egan 484 U.S. 518 (1988). At the end of the day, what has to be accomplished is having the clearance adjudicators understand that the concerns they have about an individual having access to classified information have been “mitigated.” Mitigated — this term has meaning. It is, in fact, a “term of art”, a term that has significance for those reviewing an individual’s ability to have access to classified information.
As a starting point, familiarize yourself with the security clearance adjudicative process and the mitigating factors described here.
If you have questions, please contact us at info@CompassRosePLLC.com.
Today the firm’s Managing Attorney, Andrew Bakaj, and his colleague, Mark Zaid, had an op-ed published in Just Security about recent events at the National Security Agency (NSA) involving PPD-19, Protecting Whistleblowers with Access to Classified Information. The investigative program is one that Andrew developed at CIA, which is based on a program he refined at DoD.
In December, Adm. Mike Rogers, director of the NSA, placed the agency’s Inspector General (IG), Dr. George Ellard, on administrative leave and recommended he be removed from his position after an investigation into whether he retaliated against a whistleblower was conducted by a panel of IGs at the CIA, Treasury and Justice Department. This article explores the ramifications of this action.
To read this article, please click here: New Case Proves Intelligence Community Whistleblowers Have Protections.
My job as an attorney is to keep my clients out of trouble. I know what can open them up to liability, and I understand what can help mitigate those liabilities. Ethics investigations are not uncommon here in Washington, and I think today’s news surrounding Kellyanne Conway can serve as a reminder to all federal employees that ethics laws are taken seriously. Furthermore, the resultant actions by the House Committee on Oversight and Government Reform highlights the possible consequences of such violations: administrative and/or criminal investigation.
As background, this morning during an appearance on Fox & Friends Ms. Conway discussed Nordstrom’s decision to drop products supplied by Ivanka Trump’s business and said, “Go buy Ivanka’s stuff is what I would tell you . . . It’s a wonderful line. I own some of it. I’m going to give a free commercial here: Go buy it today, everybody. You can find it online.” This statement was a clear violation of 5 C.F.R. section 2635.702(c) (2016) which states, “[A]n employee shall not use or permit the use of his Government position or title or any authority associated with his public office in a manner that could reasonably be construed to imply that his agency or the Government sanctions or endorses his personal activities or those of another.”
What was surprising to many attorneys is how blatant of a violation this was. What was concerning to me, as a defense attorney and former federal criminal investigator, is that her words can be construed to have conveyed an “intent.” This is important should this be investigated as a criminal matter (which I think is highly unlikely in this instance).
So, what is the key take-away from all of this? It’s simple: it is quite easy to get yourself into an ethical dilemma if you’re not careful. Accordingly, when in doubt review your ethics guides and visit the Office of Government Ethics website here so that you can understand the Standards of Conduct and applicable laws and regulations that govern you as a federal employee. If in doubt, contact an ethics attorney. The consequences of making a mistake can be significant.
On January 26, 2017, ABC News Reported that President Trump issued a memorandum to certain Federal Employees restricting their communication with Congress. If true, this poses a problem for all Federal Employees because communications to Congress and the relevant Congressional Committees are protected communications by law. (see The Whistleblower Protection Enhancement Act, the Intelligence Community Whistleblower Protection Act, and Title 10 as it applies to the Military (“No person may restrict a member of the armed forces in communicating with a Member of Congress or an Inspector General.”)).
Please note: certain Federal Employees, notably members of the Intelligence Community, must follow internal policies and procedures to properly communicate with Congress.
Under normal circumstances, an allegation of retaliation because an individual went to Congress would be the subject of a whistleblower reprisal investigation. The restrictions imposed by the President, which may run contrary to law, poses an interesting question:
Can the President of the United States be the subject of a Whistleblower Reprisal Investigation?
The short answer is: perhaps. If so, given the circumstances and the current environment here in Washington, I would posit that a Congressional Committee would be the only body that could effectively and independently investigate such an allegation.