RIP U.S. Rep. Elijah Cummings (D-MD)

Five years ago I joined a client as she testified to the House Government Reform Committee on which Rep. Cummings served. Though the client was blowing the whistle about misconduct that occurred at an agency headed by a Democratic appointee, Rep. Cummings did not hesitate to say on the record that it was among the worst things he had heard in his 17 years in Congress. I’d wish for a hundred more Rep. Cummings: unafraid to show their humanity, unafraid to criticize even their own party when it goes astray, unafraid to maintain friendships across party lines. The nation has lost a hero.

The Deep State and Learning to Love Your Haters

by David R. Schleicher

“One of the most alarming things that I’ve heard in being in Congress for 17 years is what you just described.” So said U.S. Rep. Elijah Cummings to my whistleblower client as she testified to the House Oversight and Reform Committee, as I sat behind her. Her courage was answered with bipartisan support from the committee. They clearly understood the essential role of internal critics to protecting our democracy. Know it or not, the same holds true for survival of other entities.

In contrast, consider the fate of the intelligence committee whistleblower who followed the law to report internally through the chain of command concerns that President Trump sought to deny U.S. military support to an ally unless he got in exchange help damaging his potential 2020 opponent Joe Biden. Soon after the whistleblower’s report was publicly released, Trump suggested at a private event in New York that he missed the days when traitors were executed.

Apparently some have forgotten that Edward Snowden made multiple attempts to make disclosures internally of his concerns before giving up and dumping innumerable national secrets to Wikileaks and the press. Others seem to believe that pulling the cover back on wrongdoing is naughtier than a President trading national security for a bump in the polls.

In my 20+ years of representing federal law enforcement and national security employees, my experience has been that they are deeply loyal to the country, more often than not are people who would prefer to vote Republican if given a reasonable choice, and tend to see the world in terms of right and wrong rather than full of grays. Someone who doesn’t clearly see some things as immoral is less likely to be willing to risk a bullet or worse for the cause. Many of them are folks who wouldn’t mind Snowden meeting his demise, but aren’t especially fond of Trump either.

It should be no surprise these same “deep state” citizens, who have sworn an oath to uphold the constitution against enemies foreign and domestic, cannot abide conduct by someone who puts personal gain above the interests of the country. On the other hand, they also are often people who have families and other things to lose. If they know they’ll face a firing squad for trying to do the right thing, like anyone else they will pause before doing that right thing.

Like the prophets of days of old who were beloved by kings until they brought bad news a little too often or a little too close to the throne, so the modern whistleblowers are ignored at our peril. Whether you are in government, a private company, or a non-profit, that disgruntled employee down the hall who frequently tells you the sky is falling may prove right 10% of the time. Won’t you have wished you listened and considered the grumbles, so that you didn’t miss the one in ten chance at saving your organization?

I think back to my six years of service on a local school board and an angry citizen who was frequently heard during the public comment period to make seemingly wild allegations of wrongdoing by the our staff. Wouldn’t you know it: in one instance his account of a district employee dangerously mistreating a student turned out be entirely accurate. For the sake of that student and others who might have befallen the same fate, I was glad we heard our local prophet out.

Criticism is difficult to take and often delivered by those we’d rather ignore entirely. The whistleblowers are nonetheless essential to protecting organizations when human nature is for those serving nearest the powerful to be motivated to only give them good news. It is the black swan—what is the unknown, unknown to its leaders—that poses the greatest threat to an organization. Whistleblowers are inside enough to see where the ship is missing a nail, yet often outside enough to be willing to yell to the Captain that for want of that nail the ship shall sink.

Next time you are tempted to dismiss the critic as a disgruntled employee of no value, instead try taking on the challenge of finding what may the buried 10% of invaluable information. And when it comes to being a citizen, instead of supporting the execution of the messenger bearing bad news, instead consider expressing appreciation for those brave enough to tell us when we are wrong.  Without such people, we risk joining the ranks of those empires and entities of days gone by who seemed one day very strong and upon falling were revealed to have been long ago hollowed out, largely because no one dared say that the emperor had no clothes.

David Schleicher is an attorney who represents federal employees, splitting his time between Waco, Texas and Washington, D.C. He may be reached via david@deepstate.law.

 

FOLLOW THE LEADER

by David R. Schleicher

How does a group of people come to be so under the spell of a leader that they become willing to do things that in the absence of that leader they would consider appalling? It’s a question that has fascinated me since childhood. The 2016 English translation of Volker Ullrich’s Hitler: Ascent, 1889-1939 (whether in print or by audiobook) provides some clues. Between that book and related reading and research on the topic, I gleaned this…

If there was one lesson the Führer understood better than most, it was that history is not inevitable. A slight change here or there—more opposition or less resistance—can turn the tide in a completely different direction. And so it was—85 years ago—he nervously awaited public reaction to Operation Hummingbird–what he later would label the “Night of the Long Knives.”

Just some 15 months earlier, his party had won the 1933 elections with less than 44% of the vote. On one hand they appeared to have taken control of the country. United by nationalism, beneath the surface they nonetheless were a collection of divergent forces with competing goals and centers of power. While rivals were encouraged to compete against each other for his approval, in the end he could not tolerate equals or half-allies.

Consider his Chief of Staff, Röhm, head of the storm troopers—a man whose brutality had been instrumental in their mutual rise to power. But also gay, showing socialist tendencies, and too often treating Adolf as an equal readily subject to criticism. And so Röhm made the cut for the Night of the Long Knives.

Then there was Kurt von Schleicher, a general, former Chancellor, and master of political intrigue. At one point he was certain he could tame Hitler, eventually resigning and recommending Hitler be appointed to take his place. Even that was not enough acquiescence. Adolf had a very long memory for those who had crossed him. Warned of the threat the Führer posed to him, Schleicher scoffed. The Night of the Long Knives would prove him deeply mistaken.

Elisabeth Schleicher, Kurt’s recent bride, would die that night too. If there was to be any regret from the mass massacre of the Führer’s enemies, it would be her death. Operational sloppiness. Risking turning public opinion against a plot so evil that widespread support was essential. Historian Volker Ullrich notes Goebbel’s view that “No mistakes other than Frau Schleicher also going down. A shame, but no changing that.”

90 confirmed kills, the actual number possibly twice that.

When needed, Adolf Hitler could charm a crowd of businessmen, reassuring them he was entirely sane and had their best interest at heart. But for something like Operation Hummingbird, he would work himself into a frenzy, his voice at times becoming a high-pitched squeal. Yet it would have to be sold to the public as a rational matter of national security: the death of “a small clique of professional saboteurs” a small price for peace.

It was genius, really, not hiding it as a shameful act of terror by an insecure dictator, instead openly taking responsibility for the murders. Relying on the kind hearts and trusting nature of the citizenry to come to agree such heinous acts had been essential to the survival of the nation. The victims were accused of “high treason”—leaving the Führer no choice but to take emergency action to avert disaster.  The legislature would be asked after the fact to pass a law justifying what was portrayed as having saved the country from civil war.

The real surprise was how little surprise followed. Even men like Franz von Papen, with a long career in public service and whose colleagues had been murdered, offered praise rather than protest. Elder statesmen like Hindenburg were no obstacle either: he sent Hitler a congratulatory telegram for having saved the populace from a serious threat.

Uncertainty over the bloodshed gave way to what Goebbels described as a widespread “limitless enthusiasm.” The Führer went from admired to deified. Even academics justified the slaughter, writing that the Hitler had acted within the bounds of law. Meanwhile a countryman from exile in Switzerland wrote of the Führer and those around him being “gangsters of the lowest sort,” reflecting “decadent stupidity and bloodthirsty humiliation.”

As with his invasions that easily could have caused an early end to his reign had they not been responded to with muted alarm and an assumption that it would be easy at a later point to halt such behavior, the success of Operation Hummingbird persuaded Hitler that there truly were no limits to his power. The line from Night of the Long Knives to Kristallnacht was one of progressive brutality, for a country who numbly came to view it all as normal.

A person who lied so often his own staff wondered if he understood the concept of truth, it would take overwhelming evidence to convince the Führer his power was at its end. Bombs making a wasteland of what had been one of the most modern and largest of European cities. Nearly 70,000 tons of British and American explosives dropped on Berlin.

Hitler would take his own life, leaving his disciples a legacy of trauma, shame, and denial. They would be left to pick of the pieces for a man whose narcissism, self-delusion, and arrogant belief in his own infallibility from the start bore the seeds of his and their destruction.

David Schleicher is an attorney who splits his time between Waco and Washington, D.C. He appreciates a pre-check of this piece done by Baylor University Professor of History David W. Hendon.

 

5 Keys to Understanding Impeachment

by David R. Schleicher

A December 2017 Newsweek/Wall Street Journal poll asserted that more than 40 percent of Americans believe grounds exist to hold impeachment hearings for President Trump. Four resolutions have been introduced in the U.S. House calling for impeachment, while a criminal probe is underway of possible ties between his 2016 presidential campaign and the Russian government. It all makes for a good time to pause and consider what impeachment actually involves.

  1. Impeachment is rare: No president was forcibly removed from office as a result of impeachment. Bill Clinton and Andrew Johnson were not convicted by the Senate. It is common for federal officials who otherwise might be removed from office to avoid a worse historic stain on their biographies by instead resigning, as did President Richard Nixon. Judges are the officials most likely to be successfully removed, which makes sense considering they are the referees in our democracy and therefore held to high standards.
  2. Impeachment is only half the process: While the term “impeachment” is often used to describe the entire process, in fact it is only half of it, as reflected by what happened with Clinton and Johnson. The House must approve Articles of Impeachment by a majority vote of those present. The Senate must then “convict” by a vote of at least two-thirds of those present — otherwise the Senate action is an “acquittal.”
  3. There’s likely no appeal: In the criminal or civil setting, a person unhappy with the outcome of a trial generally can appeal, often through multiple levels, potentially ending with the U.S. Supreme Court or an equivalent state court. By contrast, federal courts are extremely reluctant to hear appeals of Senate convictions, at least absent something as outrageous as a conviction vote reached by flipping a coin. When a president is at issue, the Constitution has the chief justice of the Supreme Court preside over the Senate trial. Even as a practical matter, the Supreme Court could not later hear the same case, lest it end up a 4-4 tie, given a recusal by the chief justice.
  4. Potential grounds for impeachment are numerous: Beyond treason and bribery, the “other high crimes and misdemeanors” wording opens the door to a wide range of charges. With a broad definition and senators effectively serving as the jurors, what justifies impeachment is ultimately a political question. Graft/corruption, tax evasion, perjury, obstruction of justice, false financial disclosures and sexual assault all have made (unsurprising) appearances. But among Articles approved by a House committee against Nixon were attempting to misuse the CIA and intentionally lying to the public about executive branch staff involvement in election-related misconduct.
  5. “What doesn’t impeach me makes me stronger.” While resignation is the most likely outcome for what otherwise would result in a post-impeachment removal, the process can backfire on those who pursue it. Bill Clinton reached his highest approval ratings during House/Senate impeachment proceedings — peaking at 75 percent (before declining after the proceedings ended in his favor). Then there was federal judge Alcee Hastings, removed in 1989 for accepting a bribe and lying about it under oath. The Senate is allowed to add a penalty of barring someone from further office but did not as to Judge Hastings. He got his revenge by later winning election to the U.S. House where he has served since 1993 and — get this — went on to use $220,000 in tax dollars to settle a 2014 sexual harassment complaint by a congressional staff member.

Those who wish to impeach any president are advised to make sure the American people will agree the conduct at issue is serious enough to warrant overturning the outcome of an election. Otherwise they risk ending up with a president more popular and more powerful. In our current situation, that suggests at minimum waiting for the outcome of Special Counsel Robert Mueller’s Russia investigation.

The impeachment process:

the impeachment process

David Schleicher is an attorney who has represented whistleblowers, law enforcement, and other federal employees for over two decades. He splits his time among Waco, D.C., and Houston. For more information, see www.gov.lawThis column originally ran in the Sunday, February 11, 2018 Waco Tribune-Herald. The column and graphic are (c) 2018 by Level-Headed Leadership, LLC but may be reproduced freely in their entirety.

 

Look Before You Leak (Scaramucci Didn’t)

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By David Schleicher and David Gallagher

The recently fired Anthony Scaramucci no doubt knows now the difference between a leak and an on-the-record (and profanity-laced) interview. Whether from within the White House, the intelligence community, or deep inside the bureaucracy, the U.S. government is leaking worse than a toddler in a day-old diaper. Everyone seems to be disclosing, condemning leaks, or leaking to both disclose and condemn the disclosers.

Some see these as patriotic checks on government overreach, bad policy or even criminal acts.  Others see them as self-serving political maneuvers, possibly illegal in their own right, and certainly not helpful to an administration struggling to find its footing.

In any case, the decision to leak documents or information to the press is one to be taken with eyes wide open. Combining our backgrounds in representing federal whistleblowers and decades of public relations work, we offer these suggestions for anyone licking their lips in anticipation of blowing the whistle:

  1. Put on your big kid pants. Whistleblowing is not for the faint-hearted. Consider a client who testified about her agency’s wrongdoing to the U.S. House Oversight and Government Reform Committee on a panel that also included her agency’s own management officials. Or the one who walked up to his agency’s Inspector General before a hearing and in full view of his bosses introduced himself as a whistleblower and handed over a folder of incriminating materials.
  2. You are not as invisible as you think. Higher ups frequently can discern who told what. Go ahead and copy them on your disclosures, with return receipt. Otherwise, when they’re accused of retaliation, they’ll deny having had any idea it was you. It’s a management defense that has worked.
  3. Don’t go it alone. Call us biased because we advise people on career survival and public persuasion. But 10 minutes after walking into the lion cage, you’ll wish you had taken a zookeeper with you. Better they know your plan in advance than have to come in to clean up afterwards.
  4. Know the rules. Is your disclosure one protected by law (such as a violation of a law, an abuse of authority, or substantial danger to public safety)? Or one specifically prohibited by law (such as leaking classified information to media)? Some may decide their obligations to the constitution and to defend against “all enemies, foreign and domestic,” compel them to disclose things that violate laws that otherwise prohibit disclosure. But don’t stumble into illegality–there are protected channels for disclosing even classified matters, such as to Congress or an Inspector General.
  5. Go for the gold. If you are leaking documents simply to embarrass your enemies within the building or on the other side of the aisle, don’t waste your time waiting around for a medal. Make sure your whistleblowing is over something your grandchildren can admire you for. We believe that heroes also stay around to face the music. No retiring to Moscow permitted.

It is our theory that no major human disaster has occurred without someone first attempting to call attention to the impending doom. (Remember the INS employee who reported the strange flight school activities of those who would go on to bring down planes on 9/11?)

Whether Daniel Ellsberg and US policy in Vietnam, Karen Silkwood over unsafe nuclear plant practices, Cathy Massiter (MI5 surveillance of political activists), or Laurence do Rego (fraud with Nigeria’s Ecobank), there’s a reason the public holds whistleblowers in high regard: it takes guts and there’s often hell to pay. But done intelligently and for the right reasons, they can change history.

David Schleicher, of the Schleicher Law Firm, PLLC, represents U.S. government employees and splits his time between Waco, D.C., and Houston. David Gallagher is London-based, where he is president, Growth Development, International, for Omnicom Public Relations Group.

 

Just Say No (When to Steer Clear of a Client)

By David Gallagher and David Schleicher

Kayak on the Brazos River

As any fan of courtroom TV drama knows, the accused are entitled to professional legal counsel, no matter how heinous the charge. In the court of public opinion, the rules are a little less established but arguably similar: everyone should have access to advice, and a spotty reputation is not by itself a sufficient reason to be turned away by image consultants.

But as the recent resignation of White House press secretary Sean Spicer underscores, it’s well worth advisors of all types considering in advance when to walk away from an opportunity, and when to run. We’ve compiled these suggestions:

(1) It was once a given, but we feel compelled to say it: don’t do anything illegal. Don’t help anyone else do anything illegal. Don’t attempt to mask the illegal acts of others, or obstruct the law from investigating potentially illegal acts.

(2) Consider the ethics. “It’s legal” does not equal “it’s right.” This is a greyer area than the law, but professional bodies in communications and other areas of business advice have ethical frameworks to clarify ambiguities. Things like disclosing who you represent or are advising, sticking to facts and avoiding deliberate misrepresentation of the truth.

(3) Be pragmatic. Will a new assignment alienate others you work with already? Can your colleagues support the assignment in good conscience and to the best of their abilities? And if you do not own your business, will your shareholders be happy to be associated with the new project? Will your family be embarrassed by your work?

(4) Be realistic. Do you have the skills, experience and in, some cases, the stamina to do what’s required? Is the client willing to change the story by changing their behaviour, or simply demanding a change in the way they are portrayed?

(5) Think about the future. You may feel fully justified in what you’re doing and for whom you’re serving, but if it requires you to burn bridges with others you may need in the future – say, journalists, or the judiciary – you may want to pause before striking the match.

Your client who is ostracised today may with the hindsight of history become the hero (think Martin Luther King). At the other end of the spectrum, no professional wants their dying realization to be that they did such a good job at promoting the shunned that they will be recalled as the next Leni Riefenstahl.

(6) Finally, to thine own self be true. If you’re asked to advise on issues that don’t square with your own gut feeling of what’s right, regardless of the legal or practical circumstances, you’re unlikely to do the job as well as someone who’s truly on board. That’s unfair to the client and compromises your own integrity.

We can only assume in the case of Mr. Spicer and others advising the president that the lure of fame, the proximity to power, or a sincere belief that in some cases the ends justify the means (however unsavoury) is enough to endure the daily humiliations, questionable requests and vicious undercutting to which they are publicly and privately subjected.

This may be good enough for them, but we wouldn’t recommend it for others.

David Gallagher is London-based, where he is president, Growth Development, International, for Omnicom Public Relations Group. David Schleicher, of the Schleicher Law Firm, PLLC, represents U.S. government employees and businesses.

Oreo Cookies, Cash, and a Gun

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by David Schleicher

A friend who did work overseas for the government explained to me how she would deal with those days when she had to venture into the middle of a conflict zone. “I’d take a box of Oreos, a wad of cash, and a gun.” She found there were many times the cash was needed and more than one time when the tension level was eased with the cookies. As a result, the gun stayed in its holster.

All too often, we encounter–or see in ourselves–someone who carries nothing but cookies, or only cash, or goes to the gun as step one.

Few question that being a jerk can be damaging and–at the top–even deadly to an organization.  The platitude that “one person can make a difference” often has proven itself true as a narcissist drives a country or a company into the ground.   Today’s question is a more difficult one: when does your niceness become dysfunctional? All cookies all the time?

The amiable-looking fellow above, Neville Chamberlain, is as good a starting place as any.  A British Prime Minister, he reached a 1938 agreement with Adolf Hitler that made some concessions in an effort to quench the dictator’s thirst for territory.  What Chamberlain got in return was not peace, but his photo in the dictionary under the word “appeasement.”

Attempting to buy peace (whether with cookies, cash, or by looking away at territorial grabs) with a megalomaniac merely delays a war, in the process deluding an organization into believing it need not be preparing for one. Likewise, if you’re viewed as someone who can be easily rolled because your highest goal is keeping the peace, those who most seek you out will not be prospective clients and business partners, but bullies. (The same applies to your personal life.)

Treat people how you want to be treated is a rule as old as time and a precept that is the universal to the major religions. As few of us enjoy being bullied, it makes sense to start with collegiality and kindness (the Oreos). Sometimes it takes another level of negotiation to get things accomplished (equivalent to the cash). If all else fails, don’t forget that you came prepared with your metaphorical gun.

Figuring out who you are dealing with is half the battle:  someone who views you with hostility but is open to change? A gatekeeper who needs lunch money before letting you in? Or a narcissist who will exploit every opening?

Next time you are dropped into hostile territory, don’t go it alone…pack all three.

 

 

(c) 2017 David Schleicher. Permission granted to share in entirety with attribution.