On March 7, 2019, Managing Partner Andrew P. Bakaj was interviewed by Michael Smerconish on his XM Satelite Radio Program regarding security clearances. The interview followed news that President Trump overruled numerous White House staff members and granted Jared Kushner a security clearance.
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 Partner I. Charles McCullough was cited in a Washington Post article about legal options former CIA Director John Brennan may have in response to the recent security clearance action by the President.
To read the article, click here.
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.
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 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.
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.
Compass Rose Legal Group’s Managing Attorney Andrew Bakaj and colleague Mark Zaid write a follow-on article with Just Security regarding PPD-19 whistleblower protections.
Andrew and Mark are handling multiple clients with PPD-19 appeals, and they have already forged precedent-setting decisions.
While not the topic of the article, PPD-19 is the key mechanism by which federal employees and contractors can challenge adverse security clearance actions (ie. suspension, revocation, etc.) when the action follows lawful protected activity. For more information, contact CRLG at info@CompassRosePLLC.com.
To read this article, click here: Letter to the Editor: Whistleblower Protections Are Getting Stronger.
Links to prior and associated articles are here:
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.