The Compass Rose Legal Group Blog

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On June 11, 2018, CRLG Managing Attorney Andrew Bakaj and colleagues Mark Zaid and Dan Meyer will be teaching a DC Bar Continuing Legal Education Course on Handling Whistleblower Claims. To register, click on the link below. For those unable to attend in person, there will also be an on-demand webinar of this course. https://bit.ly/2sniAaz

Description: Some might say whistleblowers are the lifeblood of government transparency. But how, as attorneys, do you best represent those who wish to expose alleged wrongdoing of their employer? Where do you take them? What if the information is classified and against the law to reveal, even to you as the attorney? What is the difference between leaking and whistleblowing? Can government agencies bar whistleblowing through non-disclosures agreement or policies? What significant legal differences exist between protecting a whistleblower’s security clearance and other forms of reprisal? Learn how best to handle whistleblower cases from distinguished experts with years of practical experience from within and outside the federal government. This class will explore the applicable laws and provide practical anecdotes from various whistleblower scenarios and cases.

Faculty: Andrew Bakaj, Compass Rose Legal Group, PLLC; Dan Meyer, former Executive Director for Intelligence Community Whistleblowing & Source Protection, Office of the Inspector General of the Intelligence Community; Mark S. Zaid (Course Chair), Law Office of Mark S. Zaid, P.C.

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Compass Rose Legal Group’s Managing Attorney Andrew Bakaj was quoted in two stories about the Intelligence Community’s Whistleblower Protection Program and the events surrounding its Director. He was also quoted extensively about the absence of the Acting Intelligence Community Inspector General from Washington, DC, who was studying full time at Harvard University’s Kennedy School of Government.

Concerning the Intelligence Community Whistleblower Protection Program, Mr. Bakaj was quoted saying:

Bakaj said he worries that the acting decision makers at the intelligence community IG’s office misinterpret Meyer’s advocacy as a defense of illegal leaking. “Whistleblower is a polarizing term,” Bakaj told Government Executive. “When they hear the word, a lot of folks think of Edward Snowden or [Chelsea] Manning. But the program’s two-fold purpose is to encourage folks to come forward with information on a problem that the agencies needs to know about, and is also a mechanism to prevent people from making classified information public.”

Bakaj, now a managing attorney at Compass Rose Legal Group, said it was difficult for intelligence agencies to relate to a ground-breaking program, which made Meyer a “lightning rod” after the names of senior officials and political appointees began appearing in news articles about possible misconduct.

It doesn’t help, he added, that acting IG Stone is a part-time leader who is studying at Harvard University. “The U.S. government has a lot of folks going to universities to obtain degrees, and I don’t begrudge them that,” Bakaj said. But if someone has risen to the level of being acting chief of an agency, he should already have the qualifications. “It’s confounding—who’s in charge of the office while he’s at Harvard?”

The full article can be accessed by clicking here.

Concerning the Acting Inspector General, Mr. Bakaj was quoted saying:

“It is my understanding that he spent most of his time at Harvard instead of at Washington. You have a problem right there,” Bakaj told the Sun. “Instead of being physically present and leading the ship. He went away, physically, with no access to classified information and no access to his staff.”

The full article can be accessed by clicking here.

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Compass Rose Legal Group’s Managing Attorney Andrew Bakaj was quoted in a story in the Los Angeles Times this evening about Rob Porter and security clearances:

The Porter case is unusual, said Andrew P. Bakaj, a lawyer who represents clients in security clearance investigations, because such serious allegations often result in immediate suspension of an employee’s clearance. Agencies worry that someone in a sensitive position could be vulnerable to blackmail, he said.

“I would expect them to pull that interim clearance and say we need to come to grips with this and figure out what’s going on,” Bakaj said. “There’s a question about his potential criminal conduct and his personal conduct. It goes to the heart of his trust, reliability, good judgment and his ability to safeguard classified information.”

The full article can be accessed by clicking here.

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Compass Rose Legal Group’s Managing Attorney Andrew Bakaj is quoted in a Foreign Policy article discussing whistleblowing and the Intelligence Community Office of Inspector General.

Specifically, Andrew responded to reporting that the office is in “disarray .” Andrew is quoted as follows:

For attorneys who represent clients with pending cases in front of the inspector general, the office’s disarray is particularly disturbing.

Andrew Bakaj, who worked for several years at the CIA’s inspector general office and helped stand up the whistleblower programs at the Pentagon and in the intelligence community, says the destruction of the office is a matter of grave national security.

“As an attorney regularly representing intelligence community officials, the [Intelligence Community Inspector General] has been a key office for both enabling my clients to lawfully disclose allegations of violations of law, rule, or regulation, as well as fostering protections by accepting allegations of whistleblower reprisal,” Bakaj, now a managing attorney at Compass Rose Legal Group, wrote in an email to FP.

Bakaj argues that the disclosures he has filed on behalf of clients have “highlighted critical and systemic failures” in the intelligence community. “A strong [intelligence community inspector general] means those issues can get to the right people or Congressional Committees for action,” he wrote. “I have seen it work.”

The full article can be accessed by clicking here.

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Every year countless federal employees, members of the military, and federal contractors have their careers placed in jeopardy by having their security clearance or access to SCI suspended or revoked. Many individuals decide to respond to or appeal the recommendation/decision on their own. Many of these same individuals assume that, as an administrative proceeding, a security adjudication is somehow “less formal” and, thus, can be handled without an attorney. The reality is quite different: official documents recommend an attorney, and the loss of a clearance will certainly be far costlier when a career comes to an abrupt halt.

While no one can guarantee a favorable outcome, as each case is different (because facts matter), scoping the response to address the government’s specific concerns in light of applicable laws, rules, and regulations means the difference between winning or losing; or having a fighting chance and outright losing.

Not seeking counsel is dangerous for a number of reasons.

First and foremost, the decision is not judicially reviewable. This is because of precedent set by the Supreme Court of the United States. In other words, the ultimate decision cannot be taken before a federal court. There is no “suing.”

Second, and this is particularly true with Department of Defense clearances before Administrative Judges: if you lost before the Administrative Judge, the only way to win on appeal is to prove that the Administrative Judge erred in either fact or law. No new evidence is permitted before the Defense Office of Hearings and Appeals Board. If it wasn’t addressed at the lower level, there is nothing that can be practically done. Many prospective clients have contacted the firm at that stage. Unless there is a glaring error, we can’t take the case in good conscience.

Finally, this is a legal proceeding. In some situations, the Department or Agency arguing for the revocation will be represented by an attorney who is prepared to argue against you retaining your security clearance. As such, the written response to the Statement of Reasons or Letter of Intent must bust be on point and sound.

The possible loss of a security clearance is a serious matter. When in doubt, seek counsel.

This article was prepared by Thomas Toman, National Security Investigations Intern.

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News recently broke that Special Counsel Robert Muller has reportedly empaneled a grand jury. The reports were quickly confirmed by anonymous sources, but for many people, it leads them to a simple question: what exactly is a grand jury?

A grand jury, to start, is composed of 16 to 23 citizens. They receive normal requests for jury duty, but these jurors do not head to an open courtroom, or end up hearing a complete case. In Washington D.C., where Mr. Muller has reportedly started to present his case to a grand jury, jurors report to the U.S. Attorney’s Office in Judiciary Square. Once all the jurors are vetted and seated, the prosecutor begins to present evidence and witnesses to the jury. The goal is to determine whether or not there is probable cause to investigate an alleged crime. During the proceedings, jurors can ask questions of the witnesses, and request further investigation. These proceedings take place in a private setting. That is to say, defense attorneys or any possible defendants do not see the prosecutor’s presentation.

At the end of the presentation, the jury votes on if there is probable cause to investigate the alleged crime, and if they find that probable cause exists, a criminal indictment is issued. On rare occasions, the grand jury also delivers a report that supplements their findings.

Being indicted is not the same as being found guilty by a regular jury. It only marks the start of a criminal prosecution, and is a certification that a jury has found that there is reason for the matter to go to trial.

This article was prepared by Thomas Toman, National Security Investigations Intern.

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The White House legal team has been in the news lately. This is because the media has focused on the President hiring veteran crisis-management attorney Ty Cobb, a relative of the late baseball legend, as well as the fifty-thousand-dollar retainer paid to Donald Trump Jr’s counsel before he posted Russia-related emails on Twitter.

To some, hiring an attorney, or “lawyering-up,” may be viewed as an admission of guilt, but hiring a lawyer isn’t an admission of anything. It’s evidence of a prudent and cautious individual. Hiring a lawyer doesn’t just mean protecting legal equities. Seeking counsel ensures that even seemingly non-legal decisions are made wisely. Poor decision making can, potentially, lead to problems down the road – legal or otherwise. Accordingly, it is important for federal employees not just to retain counsel, but to also listen to them. Moreover, if you have retained counsel, there’s no need to “act” as your own attorney.

Donald Trump Jr.’s activity is a cautionary tale. Yes, he hired expensive lawyers. However, his decision to release emails involving a meeting with Russians likely went contrary to the advice of his legal team. Not only could it be evidence of possible criminal activity, but it has resulted in former Intelligence Community leaders to point out that it, in fact, is evidence of an early Russian Intelligence Operation. The Twitter disclosure – which I’m sure his attorneys would have advised against – has the potential to harm him and others under investigation. With news reports further indicating that his father, the President, is disregarding the advice of counsel and is, instead, “acting” as his own attorney is not something to emulate.

The advice is simple: don’t just hire a lawyer – listen to them. That, and a legal strategy should never involve Twitter.

This article was prepared by Thomas Toman, National Security Investigations Intern.

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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.

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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’s Liabilities

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.

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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.

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