On Sunday, August 26, 2018, Firm partner Chuck McCullough appeared on Washington, DC’s FOX 5 program “On the Hill” to discuss the current legal issues facing the President.
On Sunday, August 26, 2018, Firm partner Chuck McCullough appeared on Washington, DC’s FOX 5 program “On the Hill” to discuss the current legal issues facing the President.
Compass Rose Legal Group’s Founding and Managing Attorney Andrew Bakaj is quoted extensively in a ThinkProgress article about the migrant children matter. Andrew’s comments concern Members of Congress requesting the Office of Inspectors General for the Department of Homeland Security and the Department of Health and Human Services to conduct an inquiry on the matter.
Below is an except of the article. The full article can be accessed by clicking here.
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Inspectors General are meant to be entirely independent from both institutional culture and political influence, said Andrew Bakaj, a former official in the Pentagon and CIA OIGs who now runs the Compass Rose Legal Group in Washington, D.C. That independence mostly relies on the individual leaders of the offices, he said, noting that DHS currently has only an acting Inspector General.
“It has to do with the personality of the IG, if they have a strong enough constitution to be able to not be swayed and to do what they’re obligated to do,” said Bakaj. “They need to let the facts lead the way and not let opinion drive how the analysis is conducted. That’s why Inspectors General are unpopular — it’s not about what you want, it’s about what you uncover.”
The Dems’ decision to ask for OIG investigations via letter rather than to badger their Republican colleagues to use Congress’ own investigative purview here is also likely to deliver better, clearer information, Bakaj said — albeit much more slowly.
“When Congress asks people to testify and come to the Hill, they have to be honest and candid but they’re going to tell Congress what is given to them by the agency,” he said. “The IG has access to the agency, period. They can walk in and demand interviews, demand documents [and] employees are obligated to cooperate.”
The resulting process can take months and be frustratingly opaque to the public. The slower and quieter the investigation, Bakaj said, the more likely it is that it’s being conducted thoroughly and responsibly.
Lawmakers asked the OIGs in their letter this week to pursue five specific questions: How exactly are the departments keeping records on the separated families, how quickly would they be able to reunite families on average, what exactly does that process look like, how does it differ for families where the parent has already been deported while the children remain in U.S. custody, and are any children missing from the departments’ records such that they could not be reunited at all?
The text of the letter further clarifies exactly what information the lawmakers are seeking. Upon hearing the specific text of the questions, Bakaj said they were well crafted to deliver the fastest possible response from investigators — especially given the sheer number of people making the request.
“The internal review will be conducted a lot more expeditiously when you have so many members of congress,” he said. “And the good thing about these questions is they are narrow and specific. It’ll be easy enough to scope out what they have to do. Hopefully it means they’ll be able to get an answer in a more timely manner.”
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.
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.
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.
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:
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.
Compass Rose Legal Group’s Managing Attorney Andrew Bakaj is quoted in a LawNewz article discussing the ramifications of former National Security Adviser Michael Flynn’s SF-86. The SF-86 is the form that federal employees and contractors must complete in order to obtain a security clearance.
Andrew discusses the ramifications of Flynn’s failure to disclose his foreign contacts; foreign activities; and foreign business, professional activities, and foreign government contacts on his SF-86. He is quoted saying:
“Given that there are multiple ongoing investigations, perhaps even a criminal investigation, the false official statements can be used as leverage by a federal investigator and the Department of Justice to obtain a guilty plea to a lesser crime or, in the alternative, to compel cooperation in the event he’s not the ‘biggest fish’ in an investigation.”
You can read the full article by clicking here.
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.