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

• The staff director on the House select committee for the January 6 Capitol attack was found to have retaliated against a whistleblower.
• By including a reprising official, House Democrats undermine whistleblower protections and signal that their support for whistleblowers is just a partisan manuever.
• Mark S. Zaid is a Washington, DC, national security attorney.

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 in order 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. 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 Andrew's expense.

Few probably know that Andrew not only created the whistleblower protection program at CIA, but is a CIA whistleblower himself. In 2014, Andrew 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 IG investigator.

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

Not only did no corrective action occur, but 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: Andrew ensured lawful disclosures were made to the Intelligence Community Inspector General.

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

To this day Andrew 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 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 Andrew because they suspected his involvement in that matter. When weeks later an IC IG official reached out to Andrew as part of a separate investigation into CIA IG, Buckley and his team thought they had him.

They initiated a retaliatory investigation which led to Andrew'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, Andrew reluctantly resigned from federal service.

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

In 2019, the Department of Homeland Security Inspector General concluded a multi-year whistleblower investigation into Andrew's case.

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

The DHS OIG investigation uncovered some particularly disturbing facts.

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

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

Today, not only is the Select Committee fervently defending Buckley, it insultingly attacked Andrew by calling his disclosures "claimed whistleblowing," embarrassingly echoing Trump's "fake whistleblower" mantra.

The Committee goes on to misapply the law by questioning the retaliatory actions taken against Andrew 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.

Let me be clear: Andrew 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 Andrew'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 their political agenda, the whistleblower apparently gets sacrificed? Given this position, the Committee is continuing the illegal reprisal against Andrew.

I have dealt with CIA OIG 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 was still in office, he would be fired for cause by any sitting President.

The right thing to do is for Speaker 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 now.

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