Democrats' pick for the top staffer on the January 6 Capitol attack investigation sends an ugly message to potential witnesses

  • The staff director of the House Capitol-riot inquiry was found to have retaliated against a whistleblower.

  • The move undermines whistleblower protections and signals Democrats' support for them is a partisan move.

  • Mark S. Zaid is a Washington, DC, national security attorney.

  • See more stories on Insider's business page.

Whistleblowers are critical to exposing illegal activity within the federal government. In fact, every federal employee has an affirmative obligation to do so.

To ensure the system functions properly, the federal government must protect whistleblowers from retaliation to encourage employees to lawfully disclose wrongdoing.

I regularly represent whistleblowers, most recently two Capitol Police officers who testified before the January 6 Select Committee on the January 6 Attack. I cofounded Whistleblower Aid in 2017, which provides pro bono legal representation to whistleblowers. Previously, I represented the intelligence-community whistleblower whose disclosure led to the first impeachment of then-President Donald Trump.

At that time, I and my colleague, Andrew Bakaj - who was the lead attorney representing that whistleblower - did what we could to protect the system, which was under constant attack by Trump and his supporters, including GOP members of Congress. In fact, during the representation, I received numerous death threats, including one that led to the criminal prosecution and jail sentence of a Trump supporter.

We are not partisan in our efforts. We work with and represent Democrats and Republicans alike. It is the principle and integrity of the system that matters most, not political parties.

Sadly, I am again trying to protect that very system, but this time, it is under attack by House Democrats who have betrayed the very system they argued in support of previously. Ironically, their decision to hire David Buckley as the select committee's staff director is at Bakaj's expense.

House select committee investing January 6 pro-Trump riot
Members of the House select committee investigating the invasion of the US Capitol on July 27. Kent Nishimura/Los Angeles Times via Getty Images

Few probably know that Bakaj not only created the whistleblower-protection program at CIA but also is a CIA whistleblower himself. In 2014, Bakaj was serving within the CIA's Office of Inspector General when multiple colleagues within the OIG disclosed to him that witness statements had been manipulated by a CIA inspector-general investigator.

These statements were being used as evidence in a criminal prosecution by the US Attorney's Office for the Eastern District of Virginia. Bakaj initially counseled to raise the issue internally so that the inspector general, who was then Buckley, could take corrective action.

No corrective action occur, and prosecutors unknowingly used the doctored evidence to compel a defendant to enter a guilty plea because of it. Given what was happening, there was only one option left: Bakaj ensured lawful disclosures were made to the intelligence-community inspector general (IC IG).

Once the disclosures made their way to the IC IG, action was swift. The matter was referred to the FBI, and Bakaj received a phone call at his desk from an FBI agent asking how to protect the whistleblowers.

To this day, Bakaj continues to protect their identities. Ultimately, the US attorney's office moved to vacate the guilty plea and refused to accept any more cases from the CIA IG because Buckley and his team were considered untrustworthy.

As part of a larger cover-up scheme, Buckley and four other senior CIA IG officials targeted Bakaj because they suspected his involvement in that matter. When weeks later an IC IG official reached out to Bakaj as part of a separate investigation into the CIA IG, Buckley and his team thought they had him.

They initiated a retaliatory investigation, which led to Bakaj's security clearance being suspended, and he was placed on administrative leave. After over 15 months at home with no end in sight to the retaliatory behavior, Bakaj reluctantly resigned from federal service.

What was particularly disturbing was that Buckley explicitly cited Bakaj's second communication with the IC IG as the reason for taking action.

US Capitol Police and DC police at January 6 attack hearing
US Capitol Police and Washington Metropolitan Police Department officers testify during a US House select committee hearing on the January 6 Capitol riot on July 27. Andrew Caballero-Reynolds/Pool via Xinhua

In 2019, the Department of Homeland Security inspector general concluded a multiyear whistleblower investigation into Bakaj's case.

Five senior CIA IG officials - including Buckley - were explicitly determined to have unlawfully retaliated against Bakaj, and it was recommended that the CIA consider stripping them all of their security clearances - a career-ending penalty for those who work within the intelligence community.

The Department of Homeland Security Office of the Inspector General investigation uncovered some particularly unsettling facts.

First, Buckley accused Bakaj of mishandling classified information because of his communication with the IC IG. Second, Buckley created an office policy - after Bakaj's communication to the IC IG - directing that CIA IG employees never disclose any information outside their own office. Buckley and his team referenced this after-the-fact office policy as "proof" that Bakaj's communication with the IC IG was wrong.

That very office policy contradicted federal law and undermined the IC IG's authority, which provides access and remedies to all intelligence-community employees, including at the CIA.

Today, the select committee is fervently defending Buckley, and it insultingly attacked Bakaj by calling his disclosures "claimed whistleblowing," an embarrassing echo of Trump's "fake whistleblower" mantra.

The committee went on to misapply the law by questioning the retaliatory actions taken against Bakaj, claiming that "the precise sort of action [Buckley] took does not constitute retaliation." Sadly, the position the committee has publicly staked is exactly what retaliators do, and it is shameful.

House select committee investing January 6 pro-Trump riot
Rep. Adam Schiff and members of the House select committee investigating the Capitol riot on July 27. Kent Nishimura/Los Angeles Times via Getty Images

Let me be clear: Bakaj is a protected whistleblower and an expert in the field.

The committee's continuing defense of Buckley portrays the horrible image that the Democrats' support of the intelligence-community whistleblower, whose protected conduct might not have existed without Bakaj's representation, was just a partisan exercise to get Trump.

Is the signal the committee wants to send that once a whistleblower issue conflicts with its political agenda, the whistleblower apparently gets sacrificed? Given this position, the committee is continuing the illegal reprisal against Bakaj.

I have dealt with the CIA Office of the Inspector General for more than 25 years. One of the last things that office does is protect whistleblowers, and that pertains to Buckley's tenure as well. Given the DHS IG's finding, if Buckley were still in office, he would be fired for cause by any sitting president.

The right thing to do is for House Speaker Nancy Pelosi and/or the committee to stop undermining the system by attacking the whistleblower and to remove a reprising official from its ranks. The committee hopes to entice whistleblowers to come before it, but the decision to retain Buckley as its staff director undermines its credibility.

I fully support the incredibly important work of the committee in investigating the attempted insurrection of our democracy, but with Buckley at its helm, I would be hesitant to bring anyone to them.

Mark S. Zaid is a Washington, DC, national security attorney.

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