El\1PO\VER OVERSIGHT

Whistleblowers & Research

E.\'lPOWR.us

June 8, 2024

Via Electronic Transmission

Inspector General Michael E. Horowitz

U.S. Department of Justice
Office of the Inspector General
950 Pennsylvania Avenue NW
Washington, DC 20530

RE: Protected Whistleblower Disclosure Pursuant to 5 U.S.C. § 2303(a)(l)(B) and 50

U.S.C. § 334 lG)(l)(B) by Retired Federal Bureau of Investigation ("FBI")
Employee with a Pending Request for Reconsideration of a Security Clearance
Revocation

Dear Inspector General Horowitz:

INTRODUCTION

Empower Oversight Whistleblowers & Research ("Empower Oversight") is a

nonpartisan, nonprofit educational organization dedicated to enhancing independent oversight
of government and corporate wrongdoing. We work to help insiders safely and legally report
waste, fraud, abuse, corruption, and misconduct to the proper authorities, and seek to hold those
authorities accountable to act on such reports by, among other means, publishing information
concerning the same.

BACKGROUND

Empower Oversight represents- ("client"), who recently retired from the

FBI with a security clearance revocatio~ nding. 1

1 Request for Reconsideration of Security Clearance Revocation (Apr. 14, 2024) (Exhibit 1).

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 Our client served the FBI honorably for 12 years, receiving cash awards and positive
performance evaluations. Then-FBI Executive Assistant Director ("EAD") Jennifer Leigh Moore
suspended our client's security clearance in March 2022, which led to an indefinite suspension
without pay. Shortly thereafter, our client confidentially made protected disclosures to the
House Judiciary Committee, alleging politicization and abuses of the security clearance process
in this case and others.

A year later, in March 2023, after Empower Oversight began representing the client, we
made an additional protected disclosure on our client's behalf to you directly and to the
Whistleblower Protection Coordinator at the Office of Inspector General ("OIG") about the
FBI's abuse of the security clearance process. 2 That disclosure included the following:

• While on personal leave, our client was in Washington, D.C. on January 6, 2021.

• After the violence that occurred that day, our client self-reported in good faith to
the appropriate FBI security official having been among the crowds in the vicinity
of the Capitol, peacefully observing.

• Fifteen months later, EAD Moore suspended our client's clearance in March 2022
pending an investigation.

• The FBI Security Division ("SecD") improperly pursued a broad, sweeping

investigation into our client's political opinions, questioning other protected First
Amendment activity and Second Amendment advocacy while off-duty.

• Our client denied knowingly entering any restricted area of the Capitol grounds,
volunteered to take an OIG polygraph examination, and was told an OIG examiner
found no deception on the question of whether he knew he was entering a restricted
area.

In April 2023, EAD Moore revoked our client's security clearance. Empower Oversight
requested, pursuant to the FBI's internal appeal process, copies of the SecD investigative file. In
January 2024, we received some (but not all) of the documents we believed necessary to draft
our client's appeal.

The FBI did not respond to our request for an extension of time to file an appeal in order
to obtain the additional documents, so we filed that appeal on the April 14, 2024, deadline with
the information available at the time-3 Given the indefinite and interminable delays the FBI is
capable of imposing in the security clearance process on employees whose pay and health
benefits are indefinitely suspended, as outlined in your May 2024 Management Advisory
Memorandum, 4 our client decided to retire. The FBI had not decided on our appeal.

2 Email from Jason Foster, Empower Oversight Founder and Chair, to the Justice Depa1tment OIG (Mar. 22, 2023).

Empower Oversight simultaneously made this same protected disclosure to Members of the House and Senate
Judiciary Committees.
3 Exhibit 1.
4 Available athttps:II oig.justice.gov /sites/ default/files/reports/24-06 7 .pdf.

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Nevertheless, since a security clearance has value for post-FBI employment opportunities, our
client would still have an economic interest in having the appeal granted.

NEW PROTECTED WHISTLEBLOWER DISCLOSURE

I write today to formally disclose to you on our client's behalf shocking documents in
SecD's investigative file that evidence an abuse of authority and a violation of our client's rights
under the First Amendment. The documents appear to demonstrate SecD's political bias and
abuse of the security clearance process to purge the FBI of employees who expressed disfavored
political views or concerns about the COVID-19 vaccine requirement. 5

While supposedly investigating a legitimate concern about risk to national security, SecD
used a pre-printed interview outline in April 2022 to interrogate FBI employees about our
client's political opinions and views about the COVID-19 vaccination. According to the pre-
printed interview outlines, SecD investigators warned our client's FBI colleagues, "You have a
duty to reply to the questions posed during this interview. Should you refuse to answer or fail to
reply fully and truthfully, action against your security clearance may be undertaken and you may
be referred to the Inspection Division for possible disciplinary action."

After inquiring whether the interviewed individual socialized with our client, the pre-
printed interview outline then lists the following questions, among others, about our client's
First Amendment-protected activities:

• "Vocalize support for President Trump?"

• "Vocalize objection to Covid-19 vaccination?"

• "Vocalize intent to attend 01/06/2021 ?"

The outline with these questions was used in at least three interviews of FBI employees who
worked with our client. 6

LEGAL ANALYSIS

The Supreme Court has observed: '"If there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion or other matters of opinion or force citizens to confess by word or act their
faith therein."' Elrod v. Burns, 427 U.S. 347, 356 (1976) (quoting Board of Educatjon v.
Barnette, 319 U.S. 624, 642 (1943). "[T]he First Amendment protects political association as
well as political expression." Id at 357 (internal quotation omitted). "These protections reflect
our 'profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open,' . . .. " Id (quoting N ew York Tjmes Co. v. SulHvan, 376
U.S. 254, 270 (1 964)).

5 Exhibit 1 at 12.
6 See Exhibit 2.

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 For these reasons, the Supreme Comt held that terminating public employees for
political patronage purposes-belonging to the wrong political party-"to the extent it compels
or restrains belief and association is inimical to the process which undergirds our system of
government and is at war with the deeper traditions of democracy embodied in the First
Amendment." Id (internal quotation omitted). Although the FBI has a legitimate interest in
limiting access to classified material of employees who seek to overthrow the United States, as
the Supreme Court has observed:

The greater the importance of safeguarding the community from incitements to the
overthrow of our institutions by force and violence, the more imperative is the need
to preserve inviolate the constitutional rights of free speech, free press and free
assembly in order to maintain the opportunity for free political discussion, to the
end that government may be responsive to the will of the people and that changes,
if desired may be obtained by peaceful means. Therein lies the security of the
Republic, the very foundation of constitutional government.

Keyishian v. Bd. ofRegents ofUniv. ofState ofNY., 385 U.S. 589,602 (1967) (internal
quotation omitted). For that reason, the Court held that a law allowing the removal of public
school teachers for "treasonable or seditious utterances or acts" was vague and violated the First
Amendment. Id at 604.

The three pre-printed questions that SecD asked our client's fellow employees show that
the FBI systematically compelled them to report on our client's personal political beliefs and
views of the COVID-19 vaccine. The information SecD compelled FBI employees to disclose
about our client is completely irrelevant to any legitimate security risk determination, and
reliance on it to revoke a security clearance obviously violates the First Amendment. Based on
these documents, it is reasonable for our client to believe that SecD has been doing this more
broadly in many other cases in an effort to purge employees with disfavored views from the FBI.

That belief is reinforced by evidence that Empower Oversight provided to your office on
June 21, 2023, indicating that the second-highest FBI official, Paul Abbate, had told FBI special
agents in charge that "anyone who questions the FBI's response or his decisions regarding the
response to January 6 th did not belong in the FBI and should find a differentjob." 7

In this case, the effort to purge employees worked. Due to economic necessity imposed
by the FBI's Kafkaesque, never-ending internal appeal process and the procedural limits on any
timely external remedy, our client chose to retire early rather than wait indefinitely for the FBI to
rule on our appeal. The FBI forced our client to forego years of additional retirement credits,
health benefits, and employment opportunities for expressing views that are supposed to be
protected by the First Amendment.

Our client quickly and voluntarily self-disclosed attendance at the protest on J anuary 6,
2021, after it descended into a riot. SecD had a legitimate reason to investigate wh ether our
client committed any crimes, advocated any illegal acts, or did anything else that raised a

7 Letter from Tristan Leavitt, Empower Oversight President, to Michael Horowitz, Justice Department Inspect or

General (Jun. 2 1, 2023), available at https://empowr.us/wp-content/uploads/2023/06/2023-06-2 1-TL-to-DOJ-

IG-FBI-WB-affidavit-Final-w-Aff.pdf.

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legitimate security concern. The FBI also has legitimate reasons to revoke the security
clearances of employees who engage in or support unlawful acts, particularly those designed to
disrupt the peaceful transfer of power.

But our client did not do any of those things. Revoking a security clearance for being
near those who did or merely sharing some similar political views as others who acted unlawfully
is pure guilt by association.

CONCLUSION

Instead oflimiting its investigation to legitimate issues, SecD acted as if support for
President Trump, objecting to COVID-19 vaccinations, or lawfully attending a protest was the
equivalent of being a member of Al Qaeda or the Chinese Communist Party. The FBl's
intentions are made clear by the questions it chose to put in black and white on a government
document.

Our client makes this protected whistleblower disclosure to you based on the reasonable
belief that the FBI violated the First Amendment not only in this case but likely on a systemic
basis in many others. Last summer, Empower Oversight provided you with evidence that
purging the FBI of employees with certain disfavored views appears to be a goal articulated by
the Deputy Director. Now, this new evidence raises a reasonable suspicion that the FBI is
methodically abusing the security clearance process as a pretext to achieve that goal.

Empower Oversight respectfully requests that your office investigate to uncover the scope
of these abuses and identify of the individuals responsible. We also request that you provide a
comprehensive report to the FBl's oversight committees in Congress to assist in identifying
which FBI executives at SecD or elsewhere, at any level, were aware and allowed this misconduct
to occur.

Cordially,

/ Tristan Leavitt/
Tristan Leavitt
President

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 EXHIBIT 1
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