National security eyebrows shot up last month when a former FBI counterintelligence special agent received a four-year prison sentence. Why? He had gone to work for a Russian oligarch, a sanctioned oligarch no less. Robert McGonigal had headed the New York field office counterintelligence work. For some of the lessons everyone with clearance should learn from this, the Federal Drive with Tom Temin talked with attorney Dan Meyer, managing partner at Tully Rinckey.

Interview Transcript:  

Tom Temin And this fellow had retired from the FBI. Correct. And then went to work for this oligarch. Is that sequence of events here?

Dan Meyer Yes. This is one of those instances where a former federal official did not become a retired annuity and come back and work for the federal government, which many people do, but decided to take his expertise that he learned in the federal government and use it against the United States.

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Tom Temin So I guess then the main lesson here is, even if you’ve had clearance and you have left the government, you just can’t go to work for anybody.

Dan Meyer Yes. What he violated in the U.S. code in title 50 was the International Emergency Economic Powers Act of 1977. So, this was not a security clearance violation. This was a criminal act where he basically betrayed the United States by working with our enemies.

Tom Temin And if you work for the government in any capacity the first time you join or periodically, do you get reminders of that kind of prohibition? By the way, you can’t do this when you’ve been an employee for the government, or nobody can work for a Russian oligarch.

Dan Meyer Well, what happens is this you work for the federal government for many years, and you don’t understand the type of advice and counsel that private executives get all the time, because, you know, you have a pretty good set up in a federal agency. There’s a general counsel and deputy general counsels and assistant general counsels, and everything you do as a fed is screened for you, and you don’t have to think about the compliance issues. Then you go out on your own, and all of a sudden you’re setting up your own system and you need to go out and get advice. And if he got advice, he ignored it. If you didn’t get advice, that was a very, uh well, it was a bad decision on his part.

Tom Temin This could fall into two different categories. One, you’re just ignorant and oh, that seems like a nice guy. Lots of herring and, you know, maybe exotic travel. And then there’s those that know exactly what they’re doing, and they somehow maybe feel that’s a way to get revenge on what they felt might have been a stilted career or something and going to work for someone prohibited.

Dan Meyer Well, you’re, know, a really important point there. When I used to advise Internal Affairs for the Defense Criminal Investigative Service, I worked for a senior executive who was a former Secret Service agent, and he gave me some great insights into law enforcement. And this was law enforcement that he was in, and that when you work so close to the line in assessing other people’s actions and following the rules, you can get a little too comfortable with your own compliance. Law enforcement personnel often called this bad head work, and I think that may have been what happened here is that he had spent many years, you know, reviewing cases, bringing materials forward so that prosecutors could go after spies. And he started to feel very comfortable in an environment. And there is a tendency at that point then to substitute your judgment for the rule of law. And this is not a unique situation, Tom. It’s been happening all across the board in Washington for well over a decade. I think it’s on the rise because you’ve got a global marketplace, and public knowledge and information gained as a public servant can be commodified and can be banked on. And people go out and they try to make money. And if I had been him, you know, hindsight’s 2020, I would have gotten counsel. But even then, I can tell you as an attorney, there are lots of clients who will get counsel and still decide to go ahead and break the law.

Tom Temin We’re speaking with Dan Meyer. He’s managing partner at the law firm Tully Rinky. And the McGonigal case is a case of someone having left the government and going and doing this. But then there are those and these pop up with sort of dreary regularity going back to the Hanssen case, some back to the 1970s. And that is people who, while they are working long term for the government, are actually double agents. The latest one was Manuel Rocha. You know, he’ll go to jail probably for the rest of his life for aiding and abetting Cuba as a double agent for many, many years, 40 years.

Dan Meyer You know, part of this is our squeamishness with actually using the treason laws. It really was disturbing that case. And, you know, that strikes to the heart of our decision-making process. And those cases happen with enough frequency that it’s a reminder that for all the frustration, our security clearance process. Causes, and many people really chafe under the requirements of having a security clearance. The whole process is there to try to find these people and get them out before they can do damage. And, you know, I applaud the prosecution going forward, but what really needs to be done, and I and I think the Congress is the body to do this. If somebody’s got a Berlin and find out why this guy who had high clearances, uh, was able to operate so long without effective scrutiny, you know, my frustration at times is that the sort of flash in the pan media cases, the reality winners and such, people are lower ranked. They don’t seem to get a break. Okay. Whereas people senior higher up do get breaks and there’s a frustration and that it seems to be if you’re powerful, if you’re well placed somehow there’s a double standard and that can really endanger the Republic.

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Tom Temin Yeah. So, he’s going to probably end up that is to say, Rocha will end up in the supermax and he can trade spy stories with Robert Hanssen, who is spending the rest of his life out there.

Dan Meyer Well, his case will go into the archives. You remember Hanssen was during the year of the spies, 1985, where the, you know, KGB just picked our pockets. They made us look like buffoons. And, you know, we were losing the Cold War, as in terms of spy craft, because they successfully got a whole bunch of people that, old regimes, Ana Montes using the Cubans to get her in over at DIA. So, all of our informed understanding of people’s reliability really comes out in 1985. In his case, I’m predicting, will be studied in the various places where, uh, they do the policy for security clearance processing to see where we went wrong. And it may be that we even see amendments to the adjudicator’s guidelines based on that experience, because every rule you’re held to as a federal worker, or a service member or contractor is routed back to some instance where somebody picked our pocket and took our stuff. And it’s all empirical. It’s all based on what we know about people’s behaviors, based on the failures in the past. And, you know, what people chafe at is that they don’t want to be held to the standard or they think it doesn’t apply to them. But you know that bottom line, when you’re put under a lot of pressure, people will do some very strange things. And this was a classic case of it.

Tom Temin Yes. Do we know of any behaviors that managers can look out for that might indicate someone is doing this? I mean, in the case of Hanssen, I think he brought the secrets in paper bags or something and stuck them under a lamppost or a bridge in a park. Kind of odd, but that was maybe before the internet so ubiquitous. And we have the dark web or whatever. But do managers ever get briefed in that kind of thing? Hey, look at this behavior.

Dan Meyer Well, the behavior you want to focus on that’s actually in trying to, you know, find the behavior that leads to the case that that’s for the gumshoe to do it down. And you know, they’re okay with it. Our counterintelligence infrastructure struggles at times in, in that work because I don’t think they get enough resources. Uh, the critical thing, though, on the behavior is what drives people to do this, what drives people to betray the country, you know, and some of the cases in the 80s was financial people, you know, were frustrated living on government salaries, and they wanted to buy a fancy car or have a vacation home somewhere. Uh, so there was envy, you know, did, uh, you know, a prosperous economy where people in private sectors were making more. So financially, don’t we understand that under guideline, if we can, look at people’s credit reports, we can look at other publicly available information, we can look at gambling records. Those are all subject to the algorithms now under continuous monitoring. But when you get into the foreign contacts, it gets really, really interesting. So, we have a global economy. We have to be able to operate with connections worldwide. So, we value those connections in many cases. So how do you value the connections but still filter out those cases where foreign influence or foreign preference may be operating in? This has been very difficult in the post 9/11 period, because we reached out to a lot of Near Eastern people came in, they became Americans. They did great work for us during 9/11. And now that we’re on the downside of those wars, well, they’re over everybody scratching their heads wondering, why are all these people reliable? And so, they need to go back. You need to look at their contacts. You have to look at who’s got associations with what individuals. And it’s very, very difficult work. It’s getting easier to do with artificial intelligence because a lot can be hoovered off of the internet and you can sift through things, but in the end, it’s really an asymmetrical warfare situation. You have to win every battle. And all the enemy has to do is get one person to crack and give you the goods, and that’s why it gets tough.

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