DEPARTMENT OF HOMELAND SECURITY
OFFICE OF INSPECTOR GENERAL

In the Matter of
MURPHY, BRIAN
PRINCIPAL DEPUTY UNDER SECRETARY
DEPARTMENT OF HOMELAND SECURITY
OFFICE OF INTELLIGENCE & ANALYSIS

Whistleblower Reprisal Complaint
September 8, 2020

Complainant.
Table of Contents
Table of Authorities......................................................................................................................... ii
Introduction ......................................................................................................................................1
Jurisdiction .......................................................................................................................................1
Elements and Standard of Proof ......................................................................................................2
The Complainant..............................................................................................................................2
Facts of the Case ..............................................................................................................................4
Reprisal Analysis ...........................................................................................................................16
Relief Requested ............................................................................................................................20
Verification.....................................................................................................................................22

i

 Table of Authorities
Cases:
Figueroa v. Nielsen, 423 F. Supp. 3d 21 (S.D.N.Y. 2019) ........................................................2, 19
Miller v. Dep’t of Justice, 842 F.3d 1252 (Fed. Cir. 2016) .......................................................2, 19
Savage v. Dep’t of the Army, 122 M.S.P.R. 612 (2015) ................................................................18
Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir. 2012) ..................................................2, 19
Statutes:
Whistleblower Protection Enhancement Act of 2012 ......................................................................1
National Defense Authorization Act of 2013 ...................................................................................1
5 U.S.C. § 2302 ........................................................................................................................ 16-19
Regulations:
Presidential Policy Directive 19 (2012) ...........................................................................................1

ii

 INTRODUCTION
This complaint concerns retaliatory actions taken or threatened to be taken against a longtime public servant, Brian Murphy (“Mr. Murphy”). The retaliatory actions were taken and/or
threatened to be taken in light of at least five sets of protected disclosures made by Mr. Murphy
between March 2018 and August 2020. The protected disclosures that prompted the retaliatory
personnel actions at issue primarily focused on the compilation of intelligence reports and threat
assessments that conflicted with policy objectives set forth by the White House and senior
Department of Homeland Security (“DHS”) personnel.
As set forth below, the identified protected communications were made through
Mr. Murphy’s chain of command, as well as to the DHS Office of Inspector General (“OIG”).
Notably, Mr. Murphy made protected communications to his immediate supervisor and some of
the very Responsible Management Officials (“RMOs”) who ultimately took (or threatened to
take) retaliatory action against Mr. Murphy.
A thorough investigation will establish that the actions taken or threatened to be taken against
Mr. Murphy were done in reprisal for his protected disclosures. Therefore, we respectfully
request that DHS OIG promptly institute the required investigation. The relief requested is set
forth below.
JURISDICTION
As a Senior Executive Service employee within DHS, Mr. Murphy is protected by the
implementing regulations of PPD-19, as well as the Whistleblower Protection Enhancement Act
of 2012 and the National Defense Authorization Act of 2013. DHS OIG possesses clear
jurisdiction over these matters.

 ELEMENTS OF STANDARDS OF PROOF
The elements of reprisal are the following: (1) the information at issue is that which the
individual reasonably believes is evidence of a violation of law, rule or regulation, or is an abuse
of authority; (2) the individual made a protected disclosure regarding this information, namely to
the OIG or an authorized official at DHS; (3) a personnel action is taken, threatened or withheld
in reprisal for the protected disclosure; and (4) a causal connection exists between the protected
communication and the personnel action. The elements must be established by a preponderance
of the evidence for a complaint to be deemed substantiated. Mr. Murphy’s complaint satisfies all
four elements. The burden is on DHS officials to prove that the same adverse personnel actions
(whether taken or threatened to be taken) would have occurred even if there had been no
protected communications. See, e.g., Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1367 (Fed. Cir.
2012); Figueroa v. Nielsen, 423 F. Supp. 3d 21 (S.D.N.Y. 2019); Miller v. Dep’t of Justice,
842 F.3d 1252 (Fed. Cir. 2016)(once complainant establishes prima facia case, burden of proof
shifts to U.S. Government to establish personnel actions taken, threatened, or withheld would
have occurred absent protected communication).
BACKGROUND OF THE COMPLAINANT
From March 2018, until July 31, 2020, Mr. Murphy held the DHS position of Principal
Deputy Under Secretary in the Office of Intelligence and Analysis (“DHS I&A”). Effective
August 1, 2020, however, he was retaliatorily demoted to the role of Assistant to the Deputy
Under Secretary for the DHS Management Division.
In his DHS I&A position, Mr. Murphy was responsible for all intelligence activities in DHS
and was the principal advisor to the Secretary for Homeland Security and the Director of
National Security. Mr. Murphy’s primary mission sets included Counterterrorism, Cyber,

2

 Transnational Organized Crime, Counterintelligence, Economic Security, Support to State and
Local Officials, and Training.
Prior to joining DHS, Mr. Murphy had more than two decades’ worth of public service
experience. He served on active duty in the United States Marine Corps (“USMC”) from 1994
until 1998, and received an honorable discharge with the rank of 1st Lieutenant. He joined the
Federal Bureau of Investigation (“FBI”) on August 15, 1998, and served as a Special Agent,
where he worked on a variety of criminal and national security matters, including assignment to
the New York Field Office on September 11, 2001, when our country was attacked by terrorists.
With a Master’s degree in Islamic Studies almost completed, Mr. Murphy volunteered to be
reactivated by the USMC and subsequently served for six months in Iraq in 2004, where he saw
extensive combat and received the Combat Action Ribbon. He returned to the FBI in March
2005, completed his Master’s degree in May of 2005, and served without incident at the Bureau
until his transition to DHS on March 5, 2018. His final title at the FBI was that of Section Chief
for Partner Engagement in the Intelligence Division.
As part of his effort to better his academic understanding of the Russian threat to our
constitutional republic, Mr. Murphy also began pursuing his doctorate at Georgetown University.
He is approximately 75% complete with his doctoral program, and his concentration is on the
Executive Branch’s responsibility in combating Russian disinformation efforts within the United
States.
Mr. Murphy is, put simply, a dedicated public servant who has had a laudable career prior to
the recent events that have led to the submission of this package to the OIG. Prior to his current
circumstances, he had never had so much as a negative fitness report in his professional career
with the U.S. Government.

3

 FACTS OF THE CASE
Mr. Murphy’s protected disclosures involve violations of federal law and regulations, as well
as abuses of authority. The disclosures principally concerned actions taken by three RMOs:
(1) former DHS Secretary Kirstjen Nielsen (“Secretary Nielsen”); (2) Chad Wolf (“Mr. Wolf”),
the Senior Official currently serving as Acting DHS Secretary; and (3) Kenneth Cuccinelli (“Mr.
Cuccinelli”), the Senior Official serving as Deputy DHS Secretary. Other relevant RMOs who
had peripheral roles in the underlying events and were involved in reprisal actions (whether
threatened or actual) include former Deputy Chief of Staff Miles Taylor (“Mr. Taylor”) and
Counselor Kristen Marquadt (“Ms. Marquadt”). At least two relevant fact witnesses are former
I&A Under Secretary David Glawe (“Mr. Glawe”) and Mr. Glawe’s Chief of Staff, Matthew
Hanna (“Mr. Hanna”).
Mr. Murphy’s disclosures have resulted in clear and explicit retaliatory actions, as well as
threatened retaliatory actions. The disclosures themselves, along with the corresponding reprisal
action(s), are outlined below in five separate tranches.
A. Perjured Testimony before Congress regarding the Border Wall
Mr. Murphy made protected disclosures through the submission of two anonymous OIG
reports on November 2, 2018,1 and May 13, 2019, respectively. Those anonymous reports
outlined potential violations of federal law, including perjured testimony before Congress, as
well as abuses of authority and improper administration of an intelligence program. The relevant

This OIG complaint was originally submitted to the Office of Director for National
Intelligence’s Office of Inspector General. It was then referred to DHS OIG.

1

4

 officials regarding whom Mr. Murphy was complaining were Secretary Nielsen, Mr. Wolf, Mr.
Taylor, Ms. Marquadt, and then-Acting Deputy Secretary Clare Grady (“Ms. Grady”).2
From October 2018 through March 2019, Mr. Murphy was involved in discussions with
Secretary Nielsen, Mr. Wolf, Mr. Taylor, and Ms. Marquadt regarding the information DHS
would provide to Congress regarding construction of the border wall along the southwest border.
Their discussions were particularly focused on the issue of known or suspected terrorists
(“KSTs”) entering the United States through the southwest border. It was Mr. Murphy’s
responsibility to provide to Secretary Nielsen the relevant intelligence assessments on behalf of
DHS I&A.
On or about October 29, 2018, Mr. Glawe informed Mr. Murphy that instructions from
Mr. Taylor and Ms. Marquadt had been issued for Mr. Murphy to ensure the intelligence
assessments he produced for Secretary Nielsen’s review supported the policy argument that large
numbers of KSTs were entering the United States through the southwest border. Mr. Murphy
declined to censor or manipulate the intelligence information, viewing it as an improper
administration of an intelligence program, and stated to Mr. Glawe that doing what was being
requested would constitute a felony. Mr. Glawe agreed with Mr. Murphy’s assessment. When
Mr. Murphy would provide the intelligence information for Secretary Nielsen’s review, there
subsequently would be e-mail or phone calls from Mr. Taylor and/or Ms. Marquadt to Mr. Glawe
seeking to have the underlying intelligence data reinterpreted to fit the White House’s policy

It is unclear what, if anything, ultimately occurred with respect to either of these anonymous
OIG complaints. Mr. Murphy has no knowledge of the extent to which formal investigations
were conducted and/or reports of investigation issued. Mr. Murphy was never interviewed by
DHS OIG with respect to the allegations outlined in either OIG complaint, nor is he aware that
any investigation occurred in response to either complaint.

2

5

 argument. Each time, Mr. Glawe declined, presumably based at least in part on the cautionary
guidance Mr. Murphy had provided.
Prior to Secretary Nielsen’s testimony before the House Judiciary Committee on
December 20, 2018, Mr. Murphy attended a preparation session that went over the information
within the proposed testimony. During that session, Mr. Murphy sought to clarify for Secretary
Nielsen the distinction between a KST and a Special Interest Alien (“SIA”). An SIA is a term of
art created by U.S. Customs and Border Protection meant to describe a category of migrants who
come from countries where there is a significant terrorism threat but regarding whom there is no
individualized basis for suspecting the person is themselves a terrorist. An SIA does not
constitute a KST.
Notwithstanding the clarification provided by Mr. Murphy, he has a good faith belief that the
testimony Secretary Nielsen subsequently provided on December 20, 2018, regarding KSTs
constituted a knowing and deliberate submission of false material information. This assessment
formed the basis of the anonymous OIG complaint Mr. Murphy submitted on November 2, 2018.
On January 9, 2019, without consulting with Messrs. Glawe or Murphy, DHS issued a document
– apparently crafted by Messrs. Wolf and Taylor, and Ms. Marquadt – entitled “Myth/Fact:
Known and Suspected Terrorists/Special Interest Aliens”. The document contained erroneous
information regarding the number of KSTs and SIAs encountered along the southwest border.
On March 5, 2019, Mr. Murphy participated in another preparation session with Secretary
Nielsen, this time in advance of her testimony before the House Committee on Homeland
Security. Messrs. Wolf and Taylor were also present. During the session, Mr. Murphy provided
Secretary Nielsen with documentation reflecting that the number of documented KSTs crossing
the southwest border only consisted of no more than three individuals, not 3,755 individuals as

6

 she had previously attested to in her testimony on December 20, 2018.3 Mr. Wolf and Mr. Taylor
responded by saying Secretary Nielsen should claim the details were classified, state any KST
crossing was one too many and deflect away from addressing the significant discrepancy in the
data. Mr. Murphy advised Secretary Nielsen that he did not believe that was appropriate, and
noted that the few “known” KSTs who were apprehended were derivative contacts, in so much as
they merely had a name or phone number of a person who was known to be in contact with a
terrorist. At that point, Mr. Murphy was removed from the meeting by Mr. Wolf. He then
informed Messrs. Glawe and Hanna what transpired that evening.
It is Mr. Murphy’s good faith belief that the testimony Secretary Nielsen delivered on
March 6, 2019, regarding KSTs again constituted a knowing and deliberate submission of false
material information. Mr. Murphy outlined that assessment in his anonymous May 13, 2019,
OIG complaint.
On more than one occasion overlapping with the submission of the first anonymous OIG
complaints, as well as Mr. Murphy’s refusal to engage in what he viewed as illegal and/or
improper actions both before and after the submission of the first anonymous OIG complaint,
Mr. Murphy learned – whether through colleagues or directly from Mr. Glawe – that disciplinary
action in the form of termination of employment was being pursued against him (Mr. Murphy).
Shortly after the release of the January 9, 2019, “Myth/Fact” sheet, Mr. Murphy began to hear
from colleagues that Ms. Grady had been inquiring regarding whether Mr. Murphy’s
employment could be terminated. Mr. Glawe actually informed Mr. Murphy that he (Mr. Glawe)

It is Mr. Murphy’s good faith belief and understanding that the 3,755 number Secretary Nielsen
listed in her testimony included individuals who had applied for visas, as well as those who had
been stopped at an airport or other entry points. The figure was not an accurate representation of
the number of documented KSTs coming across the southwest border.

3

7

 had been instructed by Messrs. Wolf and Taylor, as well as Ms. Marquadt and Ms. Grady to
terminate Mr. Murphy’s employment.
On January 31, 2019, Mr. Taylor sent Mr. Murphy an e-mail asking to meet with him.
Mr. Murphy informed Mr. Glawe about the e-mail: Mr. Glawe intervened, and later informed
Mr. Murphy that Mr. Taylor had intended to seek Mr. Murphy’s termination as a result of his
declination to provide intelligence assessments regarding KSTs that Mr. Murphy felt were
inconsistent with the underlying intelligence data.
Mr. Murphy reasonably believes in good faith that the relevant RMOs –Messrs. Wolf and
Taylor and Ms. Grady, in particular – were not only aware of the details of Mr. Murphy’s refusal
to engage in what he viewed as manipulation and improper administration of an intelligence
program, but also that Mr. Murphy was the individual who had filed the first OIG complaint
alleging perjured testimony had been delivered by Secretary Nielsen.4 The basis for
Mr. Murphy’s reasonable belief is premised on the fact there were a limited number of witnesses
who would have been present in the meetings where the information was discussed that underlay
the allegations in the first OIG complaint. Both Mr. Glawe and Mr. Hanna are aware Mr. Murphy
was the individual who submitted the two anonymous OIG complaints, as Mr. Murphy informed
them of that fact.

In May 2020, after Mr. Glawe’s retirement, Mr. Wolf told Mr. Murphy he was “willing to give
him a chance and let the past be the past”. Mr. Murphy interpreted this remark to suggest
Mr. Wolf also suspected – if not knew – that Mr. Murphy had been the one who submitted at
least one, if not both, of the two anonymous OIG complaints.

4

8

 B. Improper Administration of an Intelligence Program and Abuse of Authority by
Mr. Cuccinelli
Mr. Murphy made a protected disclosure to Mr. Glawe in December 2019, regarding an
attempted abuse of authority and improper administration of an intelligence program by
Mr. Cuccinelli.
In December 2019, Mr. Murphy attended a meeting with Messrs. Cuccinelli and Glawe to
discuss intelligence reports regarding conditions in Guatemala, Honduras, and El Salvador. The
intelligence reports were designed to help asylum officers render better determinations regarding
their legal standards. Mr. Murphy’s team at DHS I&A completed the intelligence reports and he
presented them to Mr. Cuccinelli in the meeting. Mr. Murphy defended the work in the reports,
but Mr. Cuccinelli stated he wanted changes to the information outlining high levels of
corruption, violence, and poor economic conditions in the three respective countries.
Mr. Cuccinelli expressed frustration with the intelligence reports, and he accused unknown “deep
state intelligence analysts” of compiling the intelligence information to undermine President
Donald J. Trump’s (“President Trump”) policy objectives with respect to asylum.
Notwithstanding Mr. Murphy’s response that the intelligence reports’ assessments were
consistent with past assessments made for several years, Mr. Cuccinelli ordered Messrs. Murphy
and Glawe to identify the names of the “deep state” individuals who compiled the intelligence
reports and to either fire or reassign them immediately.
After the meeting, Mr. Murphy informed Mr. Glawe that Mr. Cuccinelli’s instructions were
illegal, as well as constituted an abuse of authority and improper administration of an
intelligence program. Mr. Murphy also informed Mr. Glawe he would not comply with the
instruction to fire or reassign the alleged “deep state” officials based on nothing more than
perceived political differences, and that Mr. Murphy would report the matter to DHS OIG if
9

 improper actions were taken to do so. Mr. Glawe concurred with Mr. Murphy’s assessment and
Mr. Cuccinelli’s instructions were never implemented.
C. Improper Administration of an Intelligence Program and Abuse of Authority
regarding Russian Influence
Mr. Murphy made several protected disclosures between March 2018 and August 2020
regarding a repeated pattern of abuse of authority, attempted censorship of intelligence analysis
and improper administration of an intelligence program related to Russian efforts to influence
and undermine United States interests. The relevant officials at issue were Secretary Nielsen and
Messrs. Wolf, Cuccinelli, Taylor, and Acting Deputy Director for the Office of the Director of
National Intelligence, Kash Patel (“Mr. Patel”). The majority of the information underlying these
protected disclosures is classified and cannot be provided in this unclassified submission.
However, Mr. Murphy is more than amenable to making a classified presentation on this
information – whether verbally or in writing – if provided with the requisite authorization to do
so and a secure means to provide the information to DHS OIG.
Mr. Murphy made several protected disclosures on this subject to Mr. Glawe in particular
between March 2018 and May 2020, at which time Mr. Glawe retired. Mr. Murphy does not
recall each specific instance in which he made a protected disclosure to Mr. Glawe on this
matter, but he does recall that Mr. Glawe was initially supportive of Mr. Murphy’s concerns.
In approximately September 2018, Mr. Glawe testified in front of the House Committee on
Homeland Security. Mr. Murphy was not present during the testimony. Immediately following
that hearing, Mr. Glawe informed Mr. Murphy that he had been “challenged” by Republican
members of the Committee regarding Mr. Glawe’s confirmation of Russian interference in the
2016 elections. Mr. Glawe was subsequently summoned to the White House a few days after his
testimony. Mr. Glawe informed Mr. Murphy that Secretary Nielsen had warned him that
10

 President Trump had demanded Mr. Glawe be fired. However, Secretary Nielsen and White
House Chief of Staff, John Kelly, had convinced President Trump to “give Glawe another
chance”. After that meeting at the White House, Mr. Glawe informed Mr. Murphy that while he
(Mr. Glawe) would continue to support him on most matters he (Mr. Murphy) was on his own
when it came to election interference assessments.
On October 16, 2018, Mr. Murphy made a classified protected disclosure to then-Principal
Deputy for the ODNI, Sue Gordon, on this subject. The details of the protected disclosure cannot
be provided in this unclassified submission beyond stating that the concern raised pertained to
improper administration of an intelligence program.
On or about May 28, 2019, Mr. Murphy made a classified protected disclosure to Assistant
Deputy National Security Advisor Sarah Tinsley on this subject. The details of the protected
disclosure cannot be provided in this unclassified information beyond stating that the concern
raised pertained to improper administration of an intelligence program.
On or about March 3, 2020, March 7, 2020, March 23, 2020, March 24, 2020, April 10, 2020
and April 14, 2020, Mr. Murphy made classified protected disclosures to Mr. Patel on this
subject. The details of the protected disclosure cannot be provided in this unclassified
information beyond stating that the concern raised pertained to improper administration of an
intelligence program with respect to Russian disinformation efforts within the United States.
On April 15, 2020, Mr. Murphy made classified protected disclosures to Mr. Cuccinelli and
Mr. Wolf on this subject. The details of the protected disclosure cannot be provided in this
unclassified information beyond stating that the concern raised pertained to improper
administration of an intelligence program.

11

 In mid-May 2020, Mr. Wolf instructed Mr. Murphy to cease providing intelligence
assessments on the threat of Russian interference in the United States, and instead start reporting
on interference activities by China and Iran. Mr. Wolf stated that these instructions specifically
originated from White House National Security Advisor Robert O’Brien. Mr. Murphy informed
Mr. Wolf he would not comply with these instructions, as doing so would put the country in
substantial and specific danger.
In late May 2020, Mr. Murphy made a classified protected disclosure to Mr. Cuccinelli on
this subject. The details of the protected disclosure cannot be provided in this unclassified
information beyond stating that the concern raised pertained to abuse of authority.
After a late May 2020 meeting of the NSC Deputies Committee on Election Security, Mr.
Murphy made an additional classified protected disclosure to Mr. Cuccinelli on this subject. The
details of the protected disclosure cannot be provided in this unclassified information beyond
stating that the concern raised pertained to abuse of authority, willfully withholding intelligence
information from Congress, and the improper administration of an intelligence program.
On July 7, 2020, DHS Chief of Staff John Gountanis (“Mr. Gountanis”) sent an e-mail to
Mr. Murphy directing him to cease any dissemination of an intelligence notification regarding
Russian disinformation efforts until Mr. Murphy had spoken with Mr. Wolf. The two men met on
July 8, 2020, at which time Mr. Wolf stated to Mr. Murphy the intelligence notification should be
“held” because it “made the President look bad”. Mr. Murphy objected, stating that it was
improper to hold a vetted intelligence product for reasons for political embarrassment. In
response, Mr. Wolf took steps to exclude Mr. Murphy from relevant future meetings on the
subject. The draft product was eventually completed without Mr. Murphy’s involvement and was
made public in a leak to the media by unknown individuals. It is Mr. Murphy’s assessment that

12

 the analysis in the leaked “completed draft” attempts to place the actions of Russia on par with
those of Iran and China in a manner that is misleading and inconsistent with the actual
intelligence data.
D. Improper Administration of an Intelligence Program with respect to the
Homeland Threat Assessment
Mr. Murphy made protected disclosures in March 2020 and April 2020, to his supervisor,
Mr. Glawe. The protected disclosures concerned an abuse of authority and improper
administration of an intelligence program. The relevant officials at issue were Messrs. Wolf,
Cuccinelli and Gountanis.
In March 2020, Mr. Murphy’s team at DHS I&A completed a Homeland Treat Assessment
(“HTA”). Completion of the HTA was a requirement set forth by Acting Secretary Kevin
McCleenan prior to his departure from DHS. Mr. Murphy was intimately involved in the editing
and crafting of the HTA. Following its completion, the HTA was distributed by Mr. Glawe to
Messrs. Wolf, Cuccinelli, and Gountanis. Shortly after the distribution, Mr. Glawe was informed
that further distribution of the HTA was prohibited due to concerns raised by Messrs. Wolf and
Cuccinelli regarding how the HTA would reflect upon President Trump. Two sections were
specifically labeled as concerns: White Supremacy and Russian influence in the United States.
Mr. Murphy stated to Mr. Glawe that this constituted an abuse of authority by Messrs. Wolf and
Cuccinelli, and Mr. Glawe concurred with that assessment.
In May 2020, Mr. Glawe retired, and Mr. Murphy assumed the role of Acting Under
Secretary. In May 2020 and June 2020, Mr. Murphy had several meetings with Mr. Cuccinelli
regarding the status of the HTA. Mr. Cuccinelli stated that Mr. Murphy needed to specifically
modify the section on White Supremacy in a manner that made the threat appear less severe, as
well as include information on the prominence of violent “left-wing” groups. Mr. Murphy
13

 declined to make the requested modifications, and informed Mr. Cuccinelli that it would
constitute censorship of analysis and the improper administration of an intelligence program.
On July 8, 2020, Mr. Murphy attended a meeting with Mr. Wolf and his Deputy Chief of
Staff, Scott Erickson (“Mr. Erickson”). Mr. Murphy asked Mr. Wolf about the status of the HTA.
Mr. Wolf relayed the concerns previously outlined by Mr. Cuccinelli regarding the sections on
White Supremacy and Russian influence. Mr. Wolf asked for a copy of the HTA so it could be
reviewed by policy officials, and so that information regarding the ongoing unrest in Portland,
Oregon, could be added into the HTA. Mr. Wolf asked Mr. Murphy if he would accept his edits.
Mr. Murphy responded that he would not concur with any edits that altered the underlying
intelligence in the HTA, as any such action would constitute an abuse of authority and improper
administration of an intelligence program.
Completion of the HTA was subsequently handled by other DHS officials without
consultation with Mr. Murphy. Another draft of the HTA was completed in August 2020:
Mr. Murphy did not work on that version of the HTA. On September 3, 2020, Mr. Murphy
learned the new draft was provided to Mr. Wolf, who had ordered the HTA to be redesigned with
the policy office completing the revisions. It is Mr. Murphy’s assessment that the final version of
the HTA will more closely resemble a policy document with references to ANTIFA and
“anarchist” groups than an intelligence document as originally formulated by DHS I&A.
E. Improper Administration of an Intelligence Program regarding ANTIFA
During multiple meetings between the end of May 2020 and July 31, 2020, Mr. Murphy
made protected disclosures to Messrs. Wolf and Cuccinelli regarding abuse of authority and
improper administration of an intelligence program with respect to intelligence information on
ANTIFA and “anarchist” groups operating throughout the United States. On each occasion,

14

 Mr. Murphy was instructed by Mr. Wolf and/or Mr. Cuccinelli to modify intelligence
assessments to ensure they matched up with the public comments by President Trump on the
subject of ANTIFA and “anarchist” groups. Mr. Murphy declined to modify any of the
intelligence assessments based upon political rhetoric, and advised both officials he would only
report accurate intelligence information as collected by DHS I&A.
On July 31, 2020, Mr. Wolf informed Mr. Murphy he was considering reassigning him to the
DHS Management Division. Prior to that meeting, there had been significant media attention
alleging that DHS I&A had been engaged in illicit intelligence information collection with
respect to journalists. To be unequivocally clear, the press reporting was significantly flawed
and, in many instances, contained completely erroneous assertions. For example, DHS I&A
never knowingly or deliberately collected information on journalists, at least as far as
Mr. Murphy is aware or ever authorized. There were, to be sure, efforts to track publicly
available media reporting that included information that had been leaked from the U.S.
Government, including publicly-accessible posts by journalists on social media, but DHS I&A
did not seek authorization to and was not engaging in surveillance of journalists’ private data.
Furthermore, any intelligence information gathered regarding the protests that were ongoing at
the time in places like Portland was done in strict compliance with existing legal guidance. Any
type of intelligence collection on individual protestors required evidence those individuals were
associated with violence or national security threats. To the best of Mr. Murphy’s knowledge,
DHS I&A never collected intelligence information on strictly peaceful protestors. Mr. Murphy
denies he would have been willing to authorize such conduct even if requested to do so.
Mr. Wolf stated to Mr. Murphy that although he knew there was no merit to the press
allegations, the removal and reassignment of Mr. Murphy would be politically good for

15

 Mr. Wolf, who wanted to be officially nominated as the DHS Secretary. Mr. Murphy stated that
such a reassignment for political gain would constitute an abuse of authority by Mr. Wolf.
Nevertheless, Mr. Murphy was reassigned to the Management Division on August 1, 2020.
The reassignment is set to last for up to 120 days. The detailed position at the Management
Division constitutes a de facto demotion: Mr. Murphy went from serving as the Acting Secretary
and Principal Deputy Under Secretary at DHS I&A to now working as the Assistant to the
Deputy Under Secretary for the DHS Management Division.5
REPRISAL ANALYSIS
A. Mr. Murphy’s Protected Disclosures Suffice as a Matter of Law
5 U.S.C. § 2302(a)(2)(D)(i-ii) describes a protected disclosure as a formal or information
communication or transmission of information regarding which the employee reasonably
believes evidences a violation of law, rule or regulation, or evidences gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to public health
and safety. Any protected disclosure within an employee’s supervisory chain of command or to
an Inspector General of the employee’s agency is protected under 5 U.S.C. § 2302(b)(8).
A belief is reasonable if a disinterested observer with knowledge of the essential facts known
to and readily ascertainable by the employee could reasonably conclude that the disclosed
information implicates one of the statutory categories of wrongdoing. As long as his or her belief
is reasonable, the employee need not be right about the underlying allegation. Here, the
allegations were reasonable and more than likely correct.
Each of the disclosures outlined above were protected for purposes of § 2302(b)(8).

For what it is worth, Mr. Murphy has continued to perform his work responsilbities without
complaint or incident since his reassignment.

5

16

 •

The submission of OIG complaints on November 2, 2018, and May 13, 2019,
clearly qualify as protected disclosures as a matter of law. The communications
were made to the OIG (whether ODNI or DHS), which is a covered disclosure
channel under the law. Moreover, the disclosures concerned a reasonable belief
that Secretary Nielsen had provided false material information in two separate
Congressional hearings, as well as abuses of authority and improper
administration of an intelligence program;

•

The discussion between Mr. Murphy and Mr. Glawe regarding the instructions
from Mr. Cuccinelli to fire or reassign “deep state” officials also qualifies as a
protected disclosure as a matter of law. The communications were made by
Mr. Murphy to his immediate supervisor, Mr. Glawe, a protected disclosure
channel under law. Furthermore, the communications concerned what
Mr. Murphy reasonable perceived as an order to undertaken illegal actions (i.e.,
engage in a prohibited personnel action), as well as an abuse of authority and
improper administration of an intelligence program by Mr. Cuccinelli;

•

The classified disclosures Mr. Murphy made to Messrs. Wolf, Cuccinelli and
Glawe between March 2018 and August 2020, all qualify as protected disclosures
as a matter of law. The communications were made by Mr. Murphy to three
individuals who are all within his supervisory chain of command. Furthermore,
the communications concerned what Mr. Murphy reasonably concluded in good
faith was a pattern of abuse of authority, attempted censorship of intelligence
analysis and improper administration of an intelligence program related to
Russian interference activities;

•

The communications made by Mr. Murphy to Messrs. Wolf and Glawe regarding
the HTA qualify as protected disclosures as a matter of law. The communications
were made by Mr. Murphy to two individuals within his supervisory chain of
command. Furthermore, the communications concerned what Mr. Murphy
reasonably perceived as an abuse of authority and improper administration of an
intelligence program; and,

•

Finally, the discussions Mr. Murphy had between May 2020 and July 2020, with
Messrs. Wolf and Cuccinelli regarding the intelligence reports concerning
ANTIFA qualify as protected disclosures as a matter of law. The communications
were made by Mr. Murphy to two individuals within his supervisory chain of
command. The communications themselves concerned what Mr. Murphy
reasonably perceived as an abuse of authority and improper administration of an
intelligence program.

Mr. Murphy has more than sufficiently demonstrated that his disclosures satisfy the first two
criteria of the legal analysis.

17

 B. Mr. Murphy was Subjected to Threatened and Actual Unfavorable Personnel
Actions by RMOs who Knew or were Reasonably Likely to Know about the
Protected Disclosures by Mr. Murphy
Federal law defines a “personnel action” as encompassing, among other things, a “detail,
transfer, or reassignment”, as well as “any other significant change in duties, responsilbities, or
working conditions.” See 5 U.S.C. § 2302(a)(2)(iv), (xii); see also Savage v. Dep’t of the Army,
122 M.S.P.R. 612, P 23 (2015)(noting phrase “any other significant change in duties,
responsibilities or working conditions” should be construed broadly).
As a matter of law, it is sufficient to qualify as reprisal if even the mere threat to take a
qualifying personnel action is made, to say nothing of the actual qualifying personnel action
being implemented as a result of the protected disclosure having been made. See 5 U.S.C.
§ 2302(b)(8)(A)-(B).
The factual record is abundantly clear that as a result of his protected disclosures retaliatory
personnel actions were threatened against Mr. Murphy and, ultimately, were taken against him
by RMOs who knew or were reasonably likely to know of Mr. Murphy’s protected disclosures.
Specifically, the following meet the legal threshold:
•

Mr. Murphy was informed by Mr. Glawe of efforts by several RMOs – namely,
Mr. Wolf, Mr. Taylor, Ms. Marquadt and Ms. Grady – to terminate Mr. Murphy’s
employment in 2018 and 2019. These efforts to terminate Mr. Murphy’s
employment occurred in the context of Mr. Murphy’s protected disclosures to
some of these same RMOs regarding his concern that Secretary Nielsen’s
Congressional testimony contained false material information, as well as being
pursued in the wake of Mr. Murphy’s submission of the first anonymous OIG
complaint;

•

Reformulation and completion of the HTA in August 2020 was done without
consultation with Mr. Murphy or his team at DHS I&A, despite the fact that the
first draft of the HTA had been handled specifically by Mr. Murphy’s team. This
significant change in responsibilities was implemented by Mr. Wolf. It occurred
in the wake of Mr. Murphy’s protected disclosures to Messrs. Glawe, Wolf and
Cuccinelli in which Mr. Murphy made clear he would decline to manipulate
intelligence for political reasons; and,
18

 •

On August 1, 2020, Mr. Murphy was reassigned by Mr. Wolf to a reduced role at
the DHS Management Division. This demotion and reassignment occurred in the
immediate aftermath of protected disclosures Mr. Murphy had made to
Messrs. Wolf and Cuccinelli regarding his concerns that he was being ordered to
manipulate intelligence for political reasons, and that the orders to do so
constituted an abuse of authority and improper administration of an intelligence
program.
All of these actions, jointly and severally, qualify as reviewable personnel actions within

the meaning of § 2302.
C. The Unfavorable Personnel Actions Would Not Have Been Taken Absent the
Protected Communications
To determine the answer to the “causation” question, the investigation must analyze what
bearing, if any, the protected communications had on the decisions to take, threaten, or withhold
the personnel actions. For each personnel action, the investigation must analyze the following
factors and then weigh them together to determine whether the personnel action would have been
taken absent the protected communication:
•
•
•
•

Reason stated by responsible management officials for taking, withholding, or
threatening the personnel action;
Timing between the protected communications and personnel actions;
Motive on the part of the responsible management officials to reprise; and,
Disparate treatment of the complainant as compared to other similarly situated
individuals who did not make protected communications.

The burden of proof, during this phase of the investigation, shifts to the U.S. Government.
See e.g., Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012); Figueroa v. Nielsen,
423 F. Supp. 3d 21 (S.D.N.Y. 2019); Miller v. Dep’t of Justice, 842 F.3d 1252 (Fed. Cir. 2016)
(once the complainant establishes a prima facia case, the burden of proof shifts to the U.S.
Government to establish that the personnel actions taken, threatened, or withheld would have
occurred absent the protected communication).

19

 In analyzing the actions that have been taken against Mr. Murphy, there is no independent
basis for those actions other than his protected activity. In fact, had Mr. Murphy simply
acquiesced and engaged in the conduct he reasonably perceived as evidencing violations of law
and abuses of authority, no adverse personnel actions would have taken place at all.
We are aware of no evidence that any of the adverse actions Mr. Murphy experienced would
have occurred absent his protected disclosures. The burden is on the RMOs to come forward
with that evidence. If they have any, we intend to refute it. If they fail or refuse to cooperate in
the investigation, an adverse inference should be drawn.
RELIEF REQUESTED
For the foregoing reasons, the OIG should recommend the following relief:
(a) Mr. Murphy should be immediately reinstated to his position at DHS I&A;
(b) Mr. Murphy’s reassignment (demotion) should be expunged from his Official
Personnel File and a continuity report substituted for it;
(c) Each existing officer or employee of the government who retaliated or threatened to
retaliate against Mr. Murphy for his protected activities should be reprimanded in
writing, such writing to be made a part of his or her permanent official personnel
record, or otherwise subjected to appropriate corrective or disciplinary action;
(d) Payment of reasonable attorney’s fees; and,
(e) Such other and further relief as may in the circumstances be just and proper.

20

 Respectfully submitted,
/s/ Mark S. Zaid
/s/ Andrew P. Bakaj
/s/ Bradley P. Moss
Mark S. Zaid, Esq.
Andrew P. Bakaj, Esq.
Bradley P. Moss, Esq.
Mark S. Zaid, P.C.
1250 Connecticut Ave., N.W.
Suite 700
Washington, D.C. 20036
(202) 498-0011
Mark@MarkZaid.com
Andrew@MarkZaid.com
Brad@MarkZaid.com
Attorneys for Complainant
Copies sent to:
Senate Select Committee on Intelligence
Acting Chairman & Vice Chairman
Senate Committee on Homeland Security & Governmental Affairs
Chairman & Ranking Member
House Permanent Select Committee on Intelligence
Chairman & Ranking Member
House Committee on Homeland Security
Chairman & Ranking Member

21

 Veri?cation
I declare under penalty of perjury that the facts stated in the foregoing Whistleblower

Reprisal Complaint are true and correct.