WASHINGTON – Citing new, overwhelming evidence in support of FBI whistleblower Marcus Allen, Empower Oversight filed an appeal with the FBI to restore him to work, provide back-pay, and reverse the proposed revocation of his clearance in retaliation for raising concerns about the truthfulness of FBI Director Christopher Wray’s testimony to the U.S. Senate.
The appeal letter follows the FBI’s slow-walking a records request from Allen’s attorneys. On May 11, 2023, counsel for Allen requested his clearance investigation file, but the FBI delayed producing the records until September 20, 2023. By withholding the file so long, the FBI delayed resolution of this matter for an additional four months during which Allen was without pay. Once the records were produced, it became clear that they actually undermined the FBI’s position rather than supported it.
Empower president and co-counsel for Allen, Tristan Leavitt, lays out in the letter three detailed rebuttals to the FBI’s retaliation against Marcus Allen.
1) The readjudication of Allen’s clearance occurred in reprisal for a protected whistleblower disclosure, a violation of Presidential Policy Directive 19 (“PPD-19”) and 50 U.S.C. § 3341(j)(1);
2) The proposed revocation is based on erroneous factual conclusions that do not meet the standards for revocation under Security Executive Agent Directive 4, the National Security Adjudicative Guidelines (June 8, 2017) (“Adjudicative Guidelines”); and
3) The proposed revocation is in violation of the First and possibly Fifth Amendments to the U.S. Constitution.
Throughout the letter, Leavitt cites new evidence from the FBI’s own files to poke holes in the pretexts for Allen’s clearance suspension and proposed revocation. The FBI had outlined its pretexts in a letter that leaked to the press on the eve of Allen’s and Leavitt’s congressional testimony before either had an opportunity to know or respond to the allegations.
Citing new evidence in the FBI’s own files, Leavitt writes:
Each of Mr. Allen’s supervisors agreed that “Allen has never said or done anything which caused [them] to believe Allen was directly involved in, or that he supported, the criminal activity which occurred at the Capitol on January 6”: his [Supervisory Intelligence Analyst]; his [Supervisory Special Agent]; and his Assistant Special Agent in Charge. So did the Charlotte Chief Division Counsel. Similarly, each of Mr. Allen’s supervisors agreed: “Allen has never given [them] cause to question his allegiance to the US. Allen has never given [them] cause to believe he advocates violence against the US, supports overthrowing the government, or supports those who do.” Simply put, expressing concern for constitutional rights and questioning government actions is not a reason to question someone’s allegiance to the United States, it is a reason to confirm their allegiance to our constitutional form of government. There is no basis to revoke Mr. Allen’s clearance under Guideline A.
Leavitt explains:
By disclosing in good faith to supervisors in his direct chain of command his reasonable belief that Director Wray may have lied to Congress, Mr. Allen’s September 29, 2021 communications were protected by various provisions of law…Under PPD-19 § B and 50 U.S.C. § 3341(j)(1), no FBI employee with authority to take any action affecting Mr. Allen’s eligibility for access to classified information could legally do so as a reprisal or in retaliation for this protected disclosure.
Yet, Leavitt notes the new evidence shows “the entire security investigation into Mr. Allen was predicated solely upon his protected disclosure.” Leavitt writes about the chilling effect failing to reinstate Allen will have on future whistleblowers and their importance to government accountability:
Given the centrality of Mr. Allen’s protected whistleblower disclosure of September 29, 2021 to his security clearance investigation, suspension, and proposed revocation, they constitute reprisal and retaliation for that disclosure. Because this is prohibited by PPD-19 and 50 U.S.C. § 3341(j)(1), the decision to revoke Mr. Allen’s clearance should be reversed. To do otherwise would ignore the intent of both Congress and the President in adopting these legal protections for whistleblowers. It would also chill good-faith communications from future potential whistleblowers, who can help to root out waste, fraud, and abuse and make the FBI a better agency.
For the full appeal letter, click here.
Note: Marcus Allen is being represented in this matter by both Empower Oversight and the American Center for Law and Justice.