A follow-on article to Managing Attorney Andrew Bakaj’s and colleague Mark Zaid’s Op-Ed in Just Security regarding activity within the NSA.
Andrew and Mark are handling multiple clients with PPD-19 appeals, and they have already forged precedent-setting decisions.
To read this article, please click here: Whistleblower Reinstated in Job in Test Case for NSA and Intelligence Community.
To read the original Op-Ed, click here: New Case Proves Intelligence Community Whistleblowers Have Protections.
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:
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.
At THIS moment, the legal issues involving whistleblowing in the Trump era is no different than whistleblowing under Presidents Obama and Bush. The difference is that many federal employees and contractors are now vocal about it because they are concerned that President Trump or his appointees/designees may direct an action perceived to be illegal. As a result, many of those individuals will come to rely on federal whistleblower laws to protect them as they engage in protected activity. Accordingly, it is in the federal employee’s and contractor’s best interest to become familiar with one CRITICAL component of whistleblower protection: the definition of a PROTECTED disclosure. In order to be protected from retaliation/reprisal, the disclosure must be viewed – BY LAW – as “protected.”
A protected disclosure, ie. LAWFUL whistleblowing, is a disclosure of a violation of law, rule, or regulation; fraud, waste, or abuse; mismanagement, or a substantial and specific danger to public health or safety. The disclosure need not be 100% accurate, because the legal theory is that the government doesn’t want people running around conducting their own “investigations” into the various issues they intend on disclosing. The disclosure merely has to be based on a reasonable belief that a violation was taking place. That may appear to be a low bar, but investigators will hone in on that should they intend on closing-out the case without investigation. Those issues are very fact specific and can get tricky. Let’s leave that one there for now.
Next, the disclosure must be made through proper channels. Some employees are able to make a disclosure publicly to the media. Others are most certainly not. For example: members of the Intelligence Community are prohibited from making any disclosures to the media. In fact, such activity by members of the Intelligence Community is known by the phrase “unauthorized disclosure” or, in laymen’s terms, “leak.” Not only are members of the Intelligence Community prohibited from engaging in unauthorized disclosures, doing so opens up the strong possibility of a criminal investigation and prosecution. Generally, disclosures are protected if you make it through your chain-of-command or to an Office of Inspector General.
Terminology & phraseology – let’s turn to the easy one first: a substantial and specific danger to public health or safety. The disclosure here has to be specific and there must be an actual threat to the health and safety of the general public. This means what it says.
Now, let’s turn to the key phrases “Fraud, Waste, & Abuse,” “Mismanagement,” and “Law, Rule & Regulation.” These words matter, and its misinterpretation can lead to the door being left wide open for retaliatory action without any safeguards to protect against it. In many cases, this is where a whistleblower reprisal case is won or lost.
Many individuals try and articulate that a “fraud” is taking place within their agencies and, as a result, expect that they cannot be retaliated from disclosing it. Not so fast. How do you define waste? What is a fraud? What is abuse of authority? What is mismanagement? Does the person have to be in a “management” billet to “mismanage?” This, right here, is a hot mess. The best way to define these is to link the fraud, waste, abuse, or mismanagement to a violation of law, rule, or regulation. Think of it this way: if something is wasteful, it should be illegal.Therefore, be sure you’re able to tie your disclosure to a violation of LAW, RULE, OR REGULATION. If you’re not sure, seek counsel. Down the road, should you be retaliated against and have to articulate the basis for your disclosure, you don’t want to be left relying on the position that what you witnessed “felt” like a fraud or a waste of government money and therefore your supervisor “mismanaged” the program. That’s conclusory. What LAWS, RULES, or REGULATIONS did they VIOLATE?
Potential whistleblowers need to understand that, by law, a disclosure of a policy dispute is not protected. So, what exactly is a policy dispute? A policy dispute is when you disagree with leadership on what approach or position to take on a particular issue. Policy disputes occur all the time in Washington. That’s just a fact. And remember: the President, his cabinet, and his appointees have broad authorities and are, in fact, empowered to create and implement policies and strategies. If, however, they direct an illegal action, that’s different. This is a critical point because if you find yourself disagreeing with the President or his cabinet on the “direction” they’re taking your department or office, your disclosure may not be protected – unless the disagreement is rooted in law, rule, or regulation. Given the current climate, expect to defend against retaliatory action with an allegation of insubordination being at the top of the list. However, if you’re a member of the Intelligence Community expect an action involving your security clearance. As of 2012 and 2014, retaliating via a security clearance action is a violation of law and regulation.
Let’s be clear: whistleblower “protection” doesn’t protect you from your superiors taking retaliatory actions against you. What your protected disclosure does is afford you the opportunity to CHALLENGE the action by asserting a whistleblower status, prompting an investigation to determine whether the action taken against you was in reprisal. This is absolutely important to understand. If you go into this thinking nothing will happen to you because of your whistleblower status, you will be in for a rude awakening. You need to go into this understanding how to properly disclose wrongdoing. Should, heaven forbid, leadership reprise against you, your legal status as a bona fide whistleblower will allow you to PUSH BACK by filing complaints in an effort to correct the record and protect yourself and your career.
In the coming months, and perhaps years, many federal employees and contractors will feel compelled to stand up for what they believe is right. Doing so is fraught with risk and, frankly, given the recent announcement that the President has issued a hiring freeze, an error on an employee’s part may lead to termination with no hope on finding alternative government work. So the stakes are high.
That being said, when it comes to making difficult choices about when and how to stand up and draw lines in the sand, you need to consult with yourself, your family, and with an attorney – a personal attorney. Remember, while it may be prudent to speak with government counsel, they do not represent you. In fact, government counsel will be the ones providing your leadership with the legal sufficiency to justify the retaliatory action against you.
In short, up-armor yourself and act accordingly.
Recently I have had individuals, including those within the Federal Government, reach out to me with questions about the State Department’s announcement that administrative investigations will begin into Secretary Clinton’s use of an unauthorized email server at her home. The questions were asked in light of the upcoming Presidential election and the investigation’s possible impact on it. My goal is to answer some of these questions in order to help interested individuals understand exactly what is going on based on the information we publically know (or believe we know).
This needs to be underscored: while the general issues being addressed in the investigations are not entirely new, what is different is the prominence of the matter. Ultimately, this involves a presumptive nominee for President. Regardless of the political impact this may have, there are processes and procedures for handling such matters. For full disclosure: I have previously interned for Secretary Clinton when she was a United States Senator. This is not a political piece, but an overview of federal investigations and security clearance matters based on my experience both with the Federal Government and as a private practice attorney representing federal and national security employees who find themselves under investigation or possibly losing their security clearance.
The first question that was posed to me was why is there an administrative investigation when FBI Director James Comey declined to indict Secretary Clinton? The answer is fairly straight forward. The FBI’s investigation involved identifying and investigating whether Secretary Clinton, and any other individuals, violated federal criminal law. Director Comey made it clear in testimony on Capitol Hill that based upon the FBI’s inability to identify specific intent for Secretary Clinton to violate federal criminal law, they did not recommend the Department of Justice (“DOJ”) prosecute her. Recommending that no one be criminally prosecuted is different from not referring the matter to DOJ. The FBI did refer the matter to DOJ and Director Comey, as FBI Director, recommended the matter not be prosecuted. Once referred, it was ultimately up to Attorney General Loretta Lynch to make that final decision. Ultimately, DOJ declined to prosecute.
The standards governing federal administrative investigations are much lower than criminal investigations. The critical difference: conviction for a criminal offense requires that the evidence be proven “beyond a reasonable doubt.” This is the highest standard because such a conviction results in the loss of liberty. With federal administrative investigations, the burden of proof is either “a preponderance of the evidence” or “clear and convincing evidence,” depending on the matter being investigated. It is a lower standard because, if a violation is found, the worst that can happen is that someone could ultimately lose their security clearance and their job. No one has a “right” to a particular job or a security clearance. Liberties are not at stake. Furthermore, when it comes to matters involving security clearances, the investigation is skewed in favor of national security. That is to say, the amount of evidence it takes to deny or revoke someone’s security clearance is lower because, on balance, if someone is identified as a security risk the decision will be in favor of denying access to classified information to the detriment of the individual’s ability to obtain a security clearance.
Whenever facts impact various federal law, rules, and regulations, if a criminal investigation is ongoing the administrative investigation takes a back seat. Criminal investigations can result in indictments and prosecutions, and the manner in which those investigations are conducted must be in line with strict criminal procedures and guidelines. The reason goes back to the evidentiary standard described, above.
This is a difficult question. It is possible that Secretary Clinton’s personal conduct is being investigated administratively. However, given that Secretary Clinton’s use of a private email server, or at the very least use of an e-mail address not connected to the State Department, was fairly well known by officials within the State Department, it is conceivable that individuals many rungs below her and her senior staff are under administrative investigation. For example: anyone who could have stopped it, whether it was the State Department’s Security Officers, Information Technology specialists, or others, all of those individuals could be under investigation. It doesn’t mean that they are, but they could be. I think a legitimate concern here could be that a GS-12 or GS-13 employee’s action, or for that matter inaction, could be construed as engaging in administrative violations.
While everyone is concerned about Secretary Clinton, I think about her senior aides who, if she is elected as President, may be unable to obtain a security clearance. I also think about the career federal employees and foreign service officers who’s career this may impact for years to come.
This is a tricky question as well. Administrative investigations really run the gamut. I am certain that the Office of Inspector General and others want to know what fail-safe points failed or, in the alternative, were there any fail-safe’s in place to begin with? That is to say, how did we get to this point in the first place? Those findings could be used in yet another, separate, administrative investigation: a security clearance investigation and adjudication. I don’t believe Secretary Clinton will be under a clearance investigation at this time because she is no longer affiliated with the State Department in an official capacity. Conversely, other individuals still at the State Department may be.
As Director Comey stated in testimony, administrative actions can be taken against employees who may not have violated criminal law but who have demonstrated poor judgment or willful disregard for policies and regulations. Those actions include, but are not limited to, reprimands, suspensions, and termination of employment. Those are human resource penalties. Regarding security clearances, actions could include suspensions and revocations (which would lead to possible termination of federal employment). All of these decisions will require fact finding, ie. investigations, before decisions are made.
Administrative investigations can take well over a year. Adjudicating a security clearance can take just as long. In this particular case, the administrative investigators and security clearance adjudicators can adopt reports and facts gathered by the criminal investigation. This could reduce the investigative time period significantly. Ultimately, it depends on how many people are under investigation, how many investigators are actively working the cases, and how much of the investigation has to be conducted anew.
As to the impact this will have on Secretary Clinton’s presidential ambitions, that’s up to the American people. The same is not true for her aides and any foreign service officers under administrative investigation.