On March 1, 2019, Managing Partner Andrew P. Bakaj was interviewed by National Public Radio (NPR), Yahoo! News, and Think Progress concerning President Trump’s authority in issuing Jared Kushner a security clearance.

To read the NPR article, click here.

To read the YAHOO! News article, click here.

To read the Think Progress article, click here.

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.”

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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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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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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.

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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.

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