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Interview: Does The Deep State Punish Intel Abuse Whistleblowers?


For this week’s Big Ideas with Ben Weingarten podcast, Weingarten interviews Sean Bigley, a national security attorney who prosecutes intelligence agency whistleblower retaliation cases. They discuss the chilling alleged effort to destroy his client, Adam Lovinger, following his discovery of possibly shady Defense Department contracts made out to an FBI Trump informant.

Lovinger, a highly regarded Pentagon analyst, had his career ruined, allegedly due to whistleblower retaliation for raising the Stefan Halper issue and several others — first losing a prominent position in the Trump National Security Council (NSC), then having his security clearance revoked, and finally being suspended without pay while trying to litigate four separate cases against the officials who targeted him.

The various probes and allegedly baseless allegations raised against the conservative Lovinger come from Obama administration holdovers to whom Lovinger had reported malfeasance in the prestigious Pentagon Office of Net Assessment (ONA), where he served prior to being detailed to NSC.

Since raising issues of potential corruption and wasted taxpayer funds at ONA, Lovinger says he has found himself the target of what his lawyer deems a “farce” of a process, lacking in due process and fairness, and intended to break Lovinger for political purposes. If Lovinger’s allegations are true, this is a damning case of administrative state tyranny coming from the national security apparatus.

You can find the episode on iTunes, everywhere else podcasts are found, or read the full transcript below.

The following transcript has been lightly edited for clarity.

Ben Weingarten: Sean, in your vast experience in this area of national security clearances and protecting, defending whistle-blowers, have you seen historically that security clearances have been politicized, i.e. potentially revoked or at least suspended, for reasons other than merit?

Sean Bigley: Absolutely, Ben. This is kind of one of the dirty secrets of Washington, and that is that security clearances are a necessary tool, oftentimes for employment — I often liken them to the equivalent of a professional license for a doctor, or a lawyer or somebody of that nature. Without it, you’re not gonna get work in a number of fields: Intelligence, diplomacy often times many career fields in the military, things like that. And so, it’s a tool that is often misused by folks who are looking to settle a political score, or a personal vendetta or retaliating against a whistleblower.

This is not anything new despite what people like John Brennan, and those folks would lead us to believe. This has been happening for many years. And it happens because there are no real safeguards in place to prevent this type of abuse. There have been very few efforts made in the Congress, and even fewer efforts made within the executive branch, to address this type of behavior. And so, it’s run amok, and it’s really becoming a significant problem, I think, now that it’s kind of being exposed to daylight.

Ben Weingarten: And in your experience, is this a bipartisan issue? In other words, does politicization of security clearances transcend whatever administration is in power, and actually get to the idea that those who are at the top — political leaders within institutions — want to retain their positions and maintain the status quo, and will do anything to retain that power?

Sean Bigley: So it’s interesting…historically, we have seen the misuse of clearances fall more into the whistleblower retaliation, and the settling of personal vendetta categories. It’s been really kind of a newer phenomenon that we’ve seen the politicization of security clearances, and I don’t say that from a partisan perspective necessarily, even though I do support President Trump. And I don’t make any efforts to conceal that, but truly, this is something that prior to the president’s [Trump’s] election had not really been on our radar.

And just to give some perspective here, this is our entire practice. We do about a couple of hundred of these cases a year, and so we have a pretty good bird’s-eye view of the trends and the patterns in this field. And really, it was very surprising to me the extent to which this immediately became a political tool once President Trump came into office — and by that I mean a tool of those who were seeking to thwart his nominees and appointees from coming into the government. And so, I don’t know where along the line folks in the bureaucracy sort of decided that this would be a good political weapon, but there was a very clear shift that we saw for the first time that this was being used for political purposes.

Ben Weingarten: And of course, the client most notably who you have defended with respect to revocation and suspension of security clearance, and a whole host of other reprimands is Adam Lovinger.

So let’s start with this: Mr. Lovinger was working at the Office of Net Assessment, the ONA, within the Department of Defense — it’s been characterized as essentially an in-house think tank there — and in 2016 he raised a series of issues about malfeasance within the ONA to its director, James Baker who had been appointed to that position by then-Secretary of Defense Ash Carter I believe in 2015. What were the issues that Mr. Lovinger raised?

Sean Bigley: So Mr. Lovinger raised issues pertaining to the misuse of contractors that were really centered around two broad categories. The first category was he was concerned that these folks were being paid a very large amount of money to do very little. And so when you look at the contracts that were being given to these Net Assessment contractors who Mr. Lovinger said were very politically connected, they really don’t bear a relationship to the work that was actually being performed, and so that gross waste of taxpayer funds as Mr. Lovinger perceived it was something that he really took issue with, and felt that ONA needed to be a better steward of taxpayer funds.

The second concern was a violation of law, and again, pertaining to misuse of contractors. He was saying, under federal law, it is very clear, we cannot use these contractors to go out and conduct foreign relations — and by that, I mean sending them out unsupervised across the globe to meet with foreign dignitaries, and having discussions about various policy matters or matters of concern to the United States, and then essentially reporting back to ONA on their findings. And it was very clear that that’s what they were doing. And in addition, there were actually some documents that have come into our possession, that specifically identify some of these contractors as “U.S. representative.” That’s the actual terminology that’s used to these foreign governments. And so he said, “This is improper, this is wrong, it’s against the law. These contractors can be usurping their interactions with these foreign dignitaries for their own selfish motivations that may not be consistent with the interests of the United States. This process has to stop.”

And he was ignored. They continued to fund the contractors, they continued to give them these outrageous contracts, and then weeks to months later, all of a sudden after 12 years at ONA without a single problem, a single blip on the radar, and year after year of stellar performance evaluations, now he becomes a “problem.”

Ben Weingarten: And two of those contractors of course, as we’ll get to in a minute, were highly politically sensitive: One, a close associate of Hillary Clinton’s daughter, and it appears Hillary Clinton, while at the State Department, lobbied for that contractor effectively, and the other an informantwho was embedded and it appears sought to entrap both Trump campaign officials and then officials within his administration.

But before we get to all that, between September 2016 and October 2016 there was a probe into Mr. Lovinger regarding his reading of a document with a pending security classification on an airplane. Tell us about that episode, because that appears to be really the first inquiry into Mr. Lovinger.

Sean Bigley: Yeah, so this is really interesting. This is definitely sort of the trigger point that started all of this. And what happened was, he [Lovinger] was going on a trip for official business. He, prior to departing, had picked up a stack of reading material to take with him on the airplane, and very carefully and diligently looked through that stack, flipped through it from the top to make sure that there was no classified information in there that would be a problem for him to take outside the office, confirmed that there was not, and took the papers and went on his trip.

He subsequently while on the airplane in going through these papers grew concerned that one of the documents had a marking in the footer of the document…that seemed to indicate that it may contain some classified information. So he immediately moved to secure the document, put it away, and then subsequently upon arriving at his destination turned it over to the local security officials and had it discarded.

Now, what’s interesting about this is classified information is supposed to be marked, and there are very, very specific regulatory requirements for how it is marked precisely to prevent this type of an oversight. And it was not marked. There was no, what we call in this field, a cover page, meaning a page on it that says top secret, or secret or anything like that. There were no markings whatsoever on the exterior of the document that would indicate it was classified, and in fact, we believe that the document wasn’t. It was written by an academic, a college professor who was on loan to the office, and the material should not have been anything that was classified.

But they used that, they weaponized that, against him and essentially said this was a gross lapse of judgment, and this was a problem, et cetera, et cetera. And what we keep coming back to is, Mr. Lovinger had no reasonable way of knowing that this document, if it was classified, was classified, and so, they failed in their responsibilities to mark the document, and now they’re holding him accountable for that.

Ben Weingarten: And it bears noting that Mr. Baker had sent an emailpreviously to staffers basically acknowledging that he knew that people would at times have to bring home documents, and basically just to use the utmost care when they did so. And clearly, you’re arguing that Mr. Lovinger did, in fact, act in accord with that request. Now, how close was that probe into reading this document in an airplane to some of the emails that Mr. Lovinger had sent to Mr. Baker [raising issues at ONA]?

Sean Bigley: It was right around the same time. So, when you look at the timeline of these whistleblower disclosures, they were all occurring late summer through the fall of 2016, which was exactly when this incident occurred. And at the time the incident occurred, it was relatively early in his whistleblower disclosures.

So what’s fascinating about it is they did an investigation, they wrote up a memorandum that essentially exonerated Mr. Lovinger of wrongdoing. And the memorandum says, this was a — “inadvertent” is the word that they use — violation, and essentially confirms that there were no exterior classification markings on the document. And he had no way of knowing that there was an issue.

And yet, fast-forward a few months, all of a sudden the narrative changes, and what was an inadvertent violation at the time, documented as such, now becomes a much bigger issue. And they sort of use that as the basis to blow up this concern about him.

Ben Weingarten: You mentioned that Mr. Lovinger had had around a 12-plus year career working in national security, focusing mainly on foreign threats, such as China, Iran, Islamic supremacists, et cetera, and he had been I believe provided in terms of his reviews with exceptional ratings essentially through 2016. Had Mr. Lovinger ever been subject to a similar inquiry to this first one?

Sean Bigley: Not one. And that’s pretty, pretty notable in 12 years of dealing on a daily basis with highly classified information, and the many opportunities that that presents for inadvertent mistakes, good faith mistakes. And that’s something that we see all the time — we see good people who work in this field and who clearly had no intent to do anything wrong, but they inadvertently bring their cell phone into a classified area, or they mistakenly commingle documents that are classified with unclassified, and so for him to not have any violations whatsoever, for over a decade, really speaks to the level of care that he was exercising in his job.

Ben Weingarten: Fast-forward several months: Donald Trump is elected President and Mr. Lovinger is tabbed to join the National Security Council in a fairly senior director position. And his views, as I understand them, are in accord largely with those of the president on national security and foreign affairs, as well as the then-incoming National Security Adviser, Mike Flynn. What happens from the point he is tabbed to join NSC?

Sean Bigley: So he departs for NSC in January 2017 to join the incoming administration, and they [the Department of Defense] continue these internal probes that they’ve launched, Mr. Baker has launched. There’s actually two of them that are running concurrently, and the investigators — and I use that term very loosely — that he tapped to run these probes were grossly unqualified for the job.

One was a subordinate, a direct subordinate to Mr. Baker, and yet was supposed to be conducting an independent investigation. The other one was the direct subordinate of another Obama official, Stephen Hedger. We actually have evidence that Mr. Baker drafted the documents that Mr. Hedger signed initiating that investigation, so it was essentially just a farce to provide the appearance of a bit of daylight between Mr. Baker and the second investigation.

And these folks — neither of them had any training in investigations, any training in law. They were picked essentially because they were political hacks, and they were purporting to conduct these national security investigations, and yet they have an entire office of Inspector General at the Department of Defense that’s staffed with investigators who are trained and available just for that purpose. So it’s very clear they were looking to reach a pre-determined conclusion, and one that wouldn’t be subject to any outside scrutiny. They ultimately did.

What’s interesting is they hid those conclusions from us for 14 months after they ultimately suspended Mr. Lovinger’s security clearance. They were required by executive order to turn them over within 30 days. They refused that, and then they demanded that we respond to their allegations without ever turning over a single document to us. So we had to respond blindly to these very vague allegations of wrongdoing. They came back to us and said, “You didn’t respond adequately enough to our allegations,” and we said, “Well, you didn’t give us a document, you didn’t turn over a single thing, despite your requirement to do so.”

And that’s been a real theme in this process, is sort of rigging the process at multiple steps, from the investigation all the way the actual revocation to ensure that he was not getting due process.

Ben Weingarten: Have you ever seen an instance in your career where the evidence and communications regarding Mr. Lovinger internally with those making these decisions, was withheld or redacted to the extent that it has been in his case?

Sean Bigley: Not once, and there were a number of other things that they did as well that feeds into this pattern and paint a very clear picture of what they were trying to do to him. For example, we have evidence that they leaked false and defamatory information about him [Mr. Lovinger] to the media. I have asked repeatedly that they conduct an internal investigation, and find the source of that leak, and they have refused to do so. We have evidence that there was collusion in concocting this case between folks subordinate to Mr. Baker and Mr. Baker, and an attorney inside the Pentagon who actually raised his own questions in emails we have about whether or not this case was retaliatory. But then instead of following up on that, he proceeded to instruct these folks on how to hide the retaliatory intent. It’s truly stunning. I’ve never seen anything like this. And what really perplexes me is the extent to which these individuals at the Pentagon have dug in their heels. There is absolutely no effort by anybody to reach a mediated resolution, or act within accordance of basic due process norms, or fundamental fairness. They just don’t care. And it’s truly appalling.

Ben Weingarten: Among the allegations that have been publicly disclosed, raised by the Department of Defense, in addition to the reading of that document on an airplane trip, were the following: Sending official documents to a personal email account; trying to undermine the authority of Mr. Baker; refusing to cooperate with Mr Baker’s investigators; leaking confidential information that ended up in a new story; an authorized trip to Israel — which I understand that charge was subsequently dropped; and unauthorized contact with the Indian government — although Ash Carter himself had written a letter commending Mr. Lovinger for his work with India. Do you dispute every allegation raised by the Department of Defense, or is there merit to any of them.

Sean Bigley: They’re all a total force. And just to put this in perspective because I know some people might say, “Well gee, that sounds like a lot of stuff there. I mean, there must be something to it,” what the Department of Defense did in this case is they floated a number of trial balloon charges in the media against Mr. Lovinger before they told us a single thing that he was accused of doing wrong, and before they ever put pen to paper to formalize any allegations. So, what they were trying to do, essentially, is figure out what would stick. And every time they would float these trial balloon charges and leak his stuff in the media, we would immediately shoot it down.

And so the Bar Mitzvah travel to Israel that he supposedly was unapproved to do — that was immediately shot down with documentary evidence. The purportedly unauthorized interactions with Indian government officials — that was immediately shot down with evidence.

So ultimately, what we wound up with was a set of just really vague, really nebulous allegations against him, like “you tried to undermine your boss Mr. Baker.” Well, okay, what does that mean? And what what we ultimately believe, and what we ultimately responded with, is all of these allegations that they hit him with center around, for the most part, he’s purportedly plotting or conniving to try to undermine Mr. Baker.

Well, if you look at the paper trail, in fact what he was doing was he was telling Mr. Baker, and he was telling any others in the office, “You guys can’t do what you’re doing. It’s illegal, it’s improper, it’s a gross waste of funds.” And they have spun that and turned it on its head, and made it as though he essentially was trying to launch some sneaky attack against Mr. Baker. The facts and the evidence just don’t bear it out. And we’re very confident that we have the facts and the evidence on our side, the problem is they have the process on their side. And they have weaponized that at every turn.

Ben Weingarten: Yeah, so explain the process part of this a little bit because it strikes me here that, ultimately, even if you prevail in front of one essentially administrative judge, then you end up facing another panel which apparently had overseen many of the actions taken against Mr. Lovinger, which strikes me as sort of defining the problem with the administrative state itself, which is that the administrative state is judge, jury and executioner in cases involving itself.

Sean Bigley: Absolutely, you hit the nail on the head. That’s precisely how I have described it as well. And so, the process for revoking a security clearance is essentially this: The government, the agency in question, will issue the individual written notice of the allegations — it’s supposed to be as detailed and comprehensive as national security permits. They fail to do that here. Then, the individual is supposed to be provided with the government’s evidence against him, so he can mount an effective and meaningful rebuttal. They failed to do that here, and in fact, just refuse to do it. Then, the the appeal that is mounted to that written appeal is supposed to be reviewed and adjudicated. And if it’s successful, then that’s the end of the process. If it’s not, then the individual moves to the second and final stage in the process, which varies slightly by agency. In this case, there’s a weird quirk in Department of Defense policy that says, “You Mr. Lovinger are entitled to go before an administrative judge, an independent administrative judge, who will have a hearing and render a decision. But, for whatever reason, that decision is only going to be a recommended decision, which will then go back along with the rest of your file to a panel of unaccountable bureaucrats,” who report directly to the same woman who has been leading the charge against him from Day One.

And these folks are a very obscure administrative arm of the Pentagon called Washington Headquarters Services, WHS. Their director, Barbara Westgate, is the woman who was plucked out of retirement by the Obama administration six months before the [2016 presidential] election, and she is in cahoots with Mr. Baker. We know this because all of the contracts that Mr. Lovinger was complaining about — WHS was actually the official contracting counterparty on for ONA. So in essence, WHS is incentived to retaliate against him because he was implicating them in his whistleblower complaints.

So how that provides a just and independent process is a mystery to me. It’s a mystery to many other folks as well. And I have asked repeatedly that WHS, and Ms. Westgate be recused from any further involvement. In this case, I’ve asked it be transferred to any other agency in the federal government, or that the administrative judge’s decision be allowed to be final, and they have refused all of those requests.

Ben Weingarten: And you’ve argued this goes all the way up to the Office of Secretary of Defense, Jim Mattis. Explain that.

Sean Bigley: So, Secretary Mattis is unfortunately surrounded by a group of folks who we feel are shielding him from some of the things that are happening in the bureaucracy beneath him, particularly a gentleman Kevin Sweeney, who is his chief of staff.

We have raised these issues with Mr. Sweeney repeatedly. I have directly and personally brought them to his attention, and each time he has ignored us and shifted responsibility to his subordinates, who are precisely the ones who are running the show in this process. And so there’s sort of a willful blindness there, or an arrogance of power I would say, but it’s really unfortunate because it’s creating a wall between Secretary Mattis and his own staff.

Ben Weingarten: Now, as I hinted at before, part of what was uncovered by Mr. Lovinger was contracts — I believe over 11 million dollars in contracts doled out over the years, I believe, over a decade — to a close personal friend of Chelsea Clinton, Hillary Clinton’s daughter. And Hillary Clinton had apparently lobbied on behalf of this person and her company to receive Department of Defense contracts… As well as the revelation or the whistleblowing that the contracts that Stefan Halper were receiving were outsized, and it was unclear that they were justified under ONA’s modus operandi. Explain what Mr. Lovinger uncovered. And do you believe that there’s a direct direct link between what he uncovered and there being a political rationale for the inquiries into him?

Sean Bigley: So first off, we absolutely believe that there is a political motivation behind this. With respect to the retaliation, I don’t think it’s any coincidence that the contractors he was pointing out were Stefan Halper and the very close confidante of the Clinton family. I think it explains a lot as far as the ferocity behind the retaliation efforts against him, which I have never seen in my career, despite practicing exclusively in this area.

And what he was addressing with respect to these two contractors, I’ll give you an example with respect to the Clinton-tied contractor. Those folks were producing reports at great taxpayer expense on topics like whether or not there were enough coastal elites in the national security bureaucracy, and whether or not Americans are a warlike people. Those are actual topics of reports by this contractor. Now, I suppose one can reach one’s own conclusions about whether or not that informs policymakers, and is worth the expenditure of taxpayer funds. But Mr. Lovinger certainly felt that it was not. Now, that’s not to say that these folks weren’t doing other work that may have been of more value, but nonetheless he felt that they were not qualified to serve as a contractor, and that they were not performing work that was of significant value.

With respect to Mr. Halper, he was being paid multiples of what other contractors in the office were being paid to conduct, at least on paper, similar projects. And one particularly notable example was a gentleman in the office who was a true and very preeminent scholar on China, he speaks Mandarin, he has incredible advanced degrees, an incredible knowledge on the topic — he was being paid a third or a fourth of what Mr. Halper was being paid to conduct a study on China.

So when you look at things like that, Mr. Lovinger was saying there’s really a disconnect here between what we’re paying these people to do, and what they’re actually doing. And he was concerned in hindsight with regard to Mr. Halper that there were some things that maybe Mr. Halper was doing that were off the books, as far as explaining that difference in what he was actually being paid to do on paper, and what he was being paid. And, so of course, at the time he didn’t know what Mr. Halper was up to — nobody knew. And we have to question, in hindsight, whether or not the leadership of Net Assessment and other folks who were facilitating these contracts were aware, and if there was an ulterior motive behind the insulated contracts — if they were essentially using Mr. Halper to conduct their dirty work, or to run an off-the-books operation and go after enemies of the Obama administration, folks like general Flynn, who we know Mr. Halper was being sort of sicced on as early as 2014 — there’s a lot of questions that are raised here.

I think the most important thing is that at the time Mr. Lovinger was raising them, he was raising them without any political designs. He was just trying to do what we ought to expect from all of our government employees, and that is be a good steward of taxpayer dollars, and be a vanguard against abuse of the administrative state.

Ben Weingarten: If Mr. Lovinger could deliver a message to President Trump about his plight, and more broadly the problems plaguing our federal bureaucracy, what would that message be?

Sean Bigley: I think what he would want the President to know, or to see more specifically, is the ramifications that this has had on him, and his family. We’re talking about a guy who has three children, has a mortgage, is the primary breadwinner and because he had the audacity to come forward and expose wrongdoing, he has been dragged through the mud for the last eighteen months. He has been stripped of his security clearance, stripped of his pay, and stripped of his dignity and that is not how we should treat whistleblowers in this country. There really needs to be an investigation into this, and we are hopeful that the president will step forward and assert some adult supervision of this case, which has been seriously lacking to date.

And so we’ll see. I think there’s gonna be some additional things that come out in the next few days that are going to further interest in this, and we’ll see what happens.

Ben Weingarten: Lastly, what reforms would you suggest be made to protect people like Adam Lovinger? And can we expect the administrative state to clean itself up?

Sean Bigley: Well, I definitely don’t think we can expect the administrative state to clean itself up. I think they’ve had a tool already to demonstrate that they can do that, and they have utterly failed. So I would propose, and a number of people have proposed, assigning somebody within the administration to serve as a sort of “Drain the Swamp Czar,” if you will, and coordinate all of the efforts that are long overdue to reign in the bureaucracy, to establish some accountability and to ensure that these folks remember at the end of the day who is paying their salaries, and that the voters are in charge.

As far as specific reforms, there are two things very briefly that I would like to see: Number one, I would like to see defined penalties added to a provision in the law that allows Mr. Lovinger to seek redress for retaliation on his security clearance. There are defined provisions in the Whistleblower Protection Act, but that act only applies to other the actions — disciplinary actions and things like that — that do not correlate with the security clearance. So that’s number one. I think these folks need to be on notice, these retaliators need to be on notice, what they are looking at, if they are caught.

And then the second thing is, I think that cutting off somebody’s paycheck who is fighting a whistleblower case is a really egregious abuse because it puts them in an untenable position where they have to choose whether or not they’re going to continue this fight, and the folks who are largely holding the keys to the timeline here are the same folks who cut off the paycheck. So I think that there needs to be a little bit of a second look as far as whether or not it’s appropriate to cut off the paycheck of somebody who has raised a whistleblower retaliation claim, a credible whistleblower retaliation claim.