Here's What Happens When a Whistleblower Is a Trump Appointee; the Dems' Latest Weapon

 

Lest you think that all government agency whistleblowers are afforded the same inviolable status as Eric Ciaramella, the alleged whistleblower whose complaint has turned Washington into a battleground for nearly six months, I have a little story for you.

Always on the lookout for new weapons to deploy in their never-ending war against President Trump, the deep state has discovered a new way to strike back: security clearance retaliation. A rarity during the Obama administration, it occurs so frequently now that Attorney Sean Bigley, who specializes in such cases, describes it as an “epidemic.” In a Wall Street Journal op-ed, Bigley wrote that he has represented over two dozen Trump appointees so far. Bigley currently represents Adam Lovinger, who, as an analyst at the Office of Net Assessment at the Pentagon (ONA) had his security clearance revoked after questioning large payments which had been made to FBI informant Stefan Halper and noticing that over $11 million in government contracts had been directed to a company owned by close friends of Chelsea Clinton.

Several weeks ago, Real Clear Politics’ (RCP) Susan Crabtree reported the story of Mark Moyar, a Trump political appointee who served as the Director of the Office for Civilian-Military Cooperation at the U.S. Agency for International Development (USAID). His service came to an abrupt end last summer after he “reported allegations of rampant government waste, fraud and abuse” inside the agency.

Background:

According to Crabtree, “over the course of several months,” Moyar had “reported multiple instances of wrongdoing” to USAID’s inspector general, Ann Calvaresi Barr, a 2015 Obama appointee. “Barr, and top deputies in the office denied Moyar’s due process rights after USAID officials suspended (and threatened to revoke) his security clearance, and he was forced to resign, according to several government officials familiar with the case and several government documents.”

Moyar, a Harvard graduate, holds a doctorate in history from Cambridge University. Prior to his USAID appointment, Moyar served as the director of the Project on Military and Diplomatic History at the Center for Strategic and International Studies and had served as a member of the Hoover Institution’s Working Group on the Role of Military History in Contemporary Conflict. He has also authored more than a few history books. In April 2017, Moyar published a book entitled “Oppose Any Foe: The Rise of America’s Special Operations Forces.”

In June 2019, two years after the book was published and shortly after Moyar had reported on the “waste and abuse” of career bureaucrats at USAID, the agency suspended his security clearance.

USAID officials maintain their decision stemmed from charges made by U.S. Special Operations Command that he disclosed classified information.

In a sworn statement obtained by RCP, Moyar “questions the timing of the USSOCOM allegation,” claims it is “spurious, unfounded and an act of retaliation.”

The USAID OIG’s blaming the suspension of Moyar’s security clearance on issues with the intelligence community’s pre-publication process, a process that is notorious for its vagaries, seems more a convenient excuse than an actual reason.

RCP reports:

Moyar said the Department of Defense never provided any specific information on what classified information the book disclosed. He also said he submitted the book to the Defense Office of Prepublication and Security Review, as the law requires, more than one year before it was published in April 2017.

A 30-60 day period set out in the office’s guidance as the expected time period for the review to conclude came and went without a response, he said. He said he continued to press the office for a completion date, to no avail. After 145 working days and seven calendar months, and no timeline for the review’s completion, Moyar decided to move forward with publishing it.

Apparently, the intelligence community’s pre-publication book review process is known for its inefficiencies and has been a source of frustration for many which Crabtree details in her piece.

Several legal experts for years have argued that  is broken and results in unjustifiable harms to free speech. Jack Goldsmith and Oona Hathaway, professors of law at Harvard and Yale, respectively, both of whom have been top lawyers for the Defense Department, have argued that the pre-publication review process is expansive and arbitrary and has become “unreasonable.” In a 2015 Washington Post op-ed, the pair argue the system is “racked with pathologies.”

Brett Max Kaufman, an ACLU senior attorney currently involved in litigating over the current system told RCP:

The thrust of his complaints are symptomatic of what is really a broken pre-publication review system.

The indefinite withholding of pre-publication clearance, based on the experience of our plaintiffs, is a huge problem. There are no mandatory time limits that that agency needs to review submissions from former employees, the sort of firm timeline limitation [that] is a bedrock First Amendment protection against government licensing schemes such as this.

The fact that there are no firm timelines means that certain people get preferential treatment depending on their viewpoint or whether they know someone and they can push that lever, which allows for favoritism and just unfairness throughout the process.

 

Claims of the USAID Office of Inspector General:

In a January 10, 2020 letter to Moyar, Suzann Gallagher, acting assistant inspector general for investigations, wrote that their office “had not engaged in any retaliatory action against him and that USAID Office of Security had suspended his clearance “pending further review.” She claimed that because of his “voluntary resignation” (which was actually forced), the review process was “short-circuited” and the USAID Office of Security “did not render an adjudication on your eligibility for a clearance.”

Gallagher added that “None of the actions taken by USAID with regard to your clearance violate the whistleblower protection or other due process provisions of PPD-19 or [the controlling statute].”

The letter from Moyar circulating on Capitol Hill asks for “assistance in thwarting a brazen attempt by federal bureaucrats to subvert the Trump administration and legitimate whistleblowing.”

In a written statement to RCP, dated January 16, the USAID inspector general’s office wrote:

Under the law, we cannot confirm or deny the existence of any particular whistleblower complaint or case.

USAID OIG takes every claim of whistleblower retaliation seriously and investigates them in accordance with all applicable laws, consistent with its mandate to provide independent and objective oversight.

USAID OIG does not dispute that PPD-19 and 50 USC 3341 prohibit retaliatory actions with respect to any employee’s security clearance or access determination.

When requested by whistleblower complainants, USAID OIG has provided them with detailed information about the investigation and final disposition of their complaint.

The next day, USAID spokeswoman Pooja Jhunjhunwala issued a statement which claimed that the agency was “fully compliant with PPD-19*,” including “the prohibition on retaliating against employees by affecting their eligibility for access to classified information…Any employee who believes they were subjected to reprisal can request an external review by a three-member inspector general panel.”

(*In 2012, President Obama signed and later expanded “Presidential Policy Directive 19 (PPD-19).” The law was meant to provide due process and to “ensure that whistleblowers who have access to classified information have a way to adjudicate any threats to their security clearances that may be retaliatory.”)

 

Moyar Fights Back:

In mid-January, Moyar sent a letter, including case-related documentation, to several lawmakers to enlist their support in his fight against what certainly appears to be another case of the deep state unfairly targeting a Trump supporter. Moyar writes that he was terminated, then forced to resign. RCP has obtained copies of these documents.

Moyar writes that USAID’s suspension of his security clearance and their “decision to tell the White House Office of Presidential Personnel that he cannot hold a security clearance” has made it nearly impossible to find a new position. He is suffering financially and “fears he may never get a fair hearing.” He also states:

The USAID administrator has the authority to reverse wrongful decisions and to seek investigative assistance from outside the agency, which is clearly necessary in light of the bias demonstrated by USAID [Office of Inspector General] and [the USAID Security Office].

If this precedent is allowed to stand, then in the future the Deep State can remove any political appointee by simply having their friends in one agency send an unsubstantiated allegation of security clearance infraction to another agency.

And Moyar calls on members of Congress to contact “USAID leadership, the White House, the Department of Justice and anyone else who might be able to help rectify the matter.”

Bigley Weighs In:

Bigley spoke to RCP about his “deep concern that career officials are weaponizing clearances to unfairly target and oust Trump appointees in retaliation or simply because of political differences.”

He sees Moyar’s case as “yet another example of the security clearance system being weaponized against Trump appointees who dare to speak up and challenge malfeasance in the bureaucracy.” Bigley continued:

There is no question that federal law, policy and precedent all support Dr. Moyar’s position. It’s a ludicrous argument USAID IG is making — that a security clearance suspension isn’t covered by applicable reprisal law. [That argument] is a transparent pretext to avoid holding their buddies in the [USAID] security office accountable. The same argument has already been rejected by other inspectors general, and it doesn’t pass the laugh test for credibility.

This case cries out for congressional and potentially law enforcement intervention. More broadly, Dr. Moyar and the many other administration officials subjected to similar abuses, need to know that the White House has their back. A message needs to be sent from the top that this type of behavior will not be tolerated.

Bigley added that “if USAID were in compliance, agency officials would have been careful not to allow any retaliation to occur, and the inspector general would have acknowledged the PPD-19 process applies to Moyar’s situation without his prompting and then conducted a credible reprisal investigation…They didn’t do either.”