What Just Happened Series: CIA Officers' Lawsuit at Intersection of DEI and National Security

In his second term in office, President Donald Trump has already taken sweeping measures on immigration, the environment, the U.S. military, and the structure of the federal government.

With so many executive orders, policy changes, and novel actions, it’s easy to wonder, “What just happened?” In this podcast mini-series we help to answer exactly that question. 

On each episode of “What Just Happened,” we’ll talk with leading experts, from former government officials to professors – the people who understand how government works from the inside and have studied the issues for years. They will explain the legal background and implications of how the Trump administration’s actions affect how the U.S. government operates in Washington, across the country, and around the world. 

This is not a political podcast. We are explaining the meaning and consequences of policy changes that may not be immediately apparent. Any opinions expressed are those of the speaker.

Today, we are looking at a relatively narrow example of the Trump administration’s broad policies of eliminating federal jobs and eliminating what it considers to be DEI efforts from federal agencies. Specifically, we will talk about a small number of seasoned intelligence officers who were fired because one of their duties involved agency DEI efforts. They have sought an injunction against their termination in federal court in the Eastern District of Virginia. After a brief administrative stay, a federal judge denied their application for a temporary restraining order while the case proceeds.  

Our guest today is the fired officers’ attorney, Kevin Carroll. Kevin is a partner at the Fluet law firm in Northern Virginia. Kevin is a retired Army Colonel and a former CIA case officer. He also served as a senior counsel to Republican congressman Peter King of New York and a political appointee in the first Trump administration, and later as a surrogate for the 2024 Kamala Harris campaign. 

Show Notes: 

• David Aaron (LinkedIn – X – Bluesky)
• Kevin Carroll (LinkedIn)
• Paras Shah (LinkedIn – X)
• Just Security’s coverage of the Trump administration’s executive actions 
• Music: “Broken” by David Bullard from Uppbeat: https://uppbeat.io/t/david-bullard/broken (License code: OSC7K3LCPSGXISVI)

Transcript

Paras Shah: In his second term in office, President Donald Trump has already taken sweeping measures on immigration, the environment, the U.S. military, and the structure of the federal government.

With so many executive orders, policy changes, and novel actions, it’s easy to wonder, “What just happened?” In this podcast mini-series we help to answer exactly that question. I’m Just Security’s Legal Editor, Paras Shah. 

David Aaron: And I’m David Aaron, a former federal prosecutor with the Department of Justice’s National Security Division and a visiting professor at Wesleyan University. On each episode of “What Just Happened,” we’ll talk with leading experts, from former government officials to professors — the people who understand how government works from the inside and have studied the issues for years. They will explain the legal background and implications of how the Trump administration’s actions affect how the U.S. government operates in Washington, across the country, and around the world. 

As always, this is not a political podcast. We are explaining the meaning and consequences of policy changes and legal actions that may not be immediately apparent. Any opinions expressed are those of the speaker.

Today, we are going to zoom in on a relatively narrow example of the Trump administration’s broad policies of eliminating federal jobs and eliminating what it considers to be DEI efforts from federal agencies. Specifically, we will talk about a small number of seasoned intelligence officers who were fired because one of their duties involved agency DEI efforts. They have sought an injunction against their termination in the Eastern District of Virginia. After a brief administrative stay, a federal judge on Thursday denied their application for a temporary restraining order while the case proceeds.  

We’re taping this on March 1, 2025. Facts may change, but we’ll discuss the case as it stands as of today. And our guest today is the fired officers’ attorney, Kevin Carroll. Kevin is a partner at the Fluet law firm in Northern Virginia. Kevin is a retired Army colonel and a former CIA case officer. He also served as a senior counsel to Republican congressman Peter King of New York and a political appointee in the first Trump administration, and he later as a surrogate for the 2024 Kamala Harris campaign. And in full disclosure and with some pride, Kevin is an old friend.

Kevin, welcome, and thank you for being here.

Kevin Carroll: Thank you, old friend. I appreciate it, and I can't believe it's March 1 already. 

David: Yeah, that's hard to believe as well. Well, let's get started. I mean, just as background, Kevin, you're a retired colonel with service in Iraq, Afghanistan, Guantanamo Bay, elsewhere around the world. You've served as a CIA intelligence officer. You worked for a prominent Republican congressman and the first Trump administration. Is it fair to say that you don't consider yourself to be part of a woke or anti-American agenda?

Kevin: I am one of the least woke people you've ever met, and I'll try to watch my language accordingly as we're speaking during the podcast.

 David: I'm glad you said it. Now just at the outset, we're talking today about pending litigation. So, for the audience, when we talk about the case itself, we're going to stick to what's on the record before the court. Kevin, the officers who brought this case work undercover. But what can you tell us about their jobs and their backgrounds?

Kevin: One of the things that struck me is how diverse and varied their backgrounds are, but how the one thing they all have in common is they really want to continue serving their country at CIA or in the Office of the Director of National Intelligence. I think one of them has as many as 28 years in, one of them just started. Others are just a year short of the 20-year pension mark. They work in all different directorates of CIA. All of them are a member of at least one protected class — whether that means they're over 40, they're female, they're African American, what have you. Some of them are as members of as many as four protected classes. And some of them are so deeply involved in DEI activities that one was the head of DEI for the entire intelligence community. Others have as small and tangential relationship to these things as having been a regional recruiter at universities. That's it. One poor young woman just finished CIA 101, and it's supposed to be like an administrative assistant, and was told that her first assignment would happen to be to the diversity office, and she's being fired on that basis.

David: And so, they're all in the same posture, they all received the same notice?

Kevin: Absolutely. They were told on February 14 that on February 18, as early as 8am, they should show up at a CIA facility with their identification, but without counsel, which everybody in the intelligence community knows means you're about to be fired. I don't think the agency had the right to tell them they had to show up without counsel, but when you're told to show off your ID, that means you're about to be fired. The couple of folks that showed up before the judge put a stop to things were given a paper with an ultimatum saying, pick one of the following methods of termination from CIA.

David: And generally speaking, what were those methods?

Kevin: Some were told that they could just resign on the spot, basically, and keep their clearances. Others were told that they could take a certain amount of period of time, I think 90 days in some cases, of administrative, paid administrative leave before they were terminated. But there was no right of appeal. There was no presentation of charges against them, because no misconduct has been alleged, and there was certainly no opportunity. And this is one of the things that eventually became important to the judge, evidently, as of Thursday's argument. They weren't given any opportunity to apply for jobs inside the organization. And that's, I think, going to be crucial going forward legally, because some of them, for example, a young woman who's a data scientist, which is a very sought-after skill set, both in the government and the private sector, has as many as eight other offers within CIA for employment. 

David: So, they're given this paper, there was a fairly short deadline for them to decide after being told to show up without counsel, and it indicated what would happen if they didn't voluntarily resign?

Kevin: Exactly. The way that the agency planned for it to work was people showed up, you know, they were told on a Friday heading into a federal holiday weekend, report first thing on the next workday. So, no real chance to consult with counsel. And then they received this paper, which told them that by the close of business the next day, they needed to figure out which manner they wish to be dismissed from the agency from. 

So, it was only really by good fortune that I happened to be on a conference call with a bunch of them on like noon on the Friday that they were already in touch with counsel, right, you know? So, we were able to work through the weekend and get a package together seeking a temporary restraining order. Otherwise, most people in the intelligence community don't have retained counsel, for goodness’ sakes. There wasn't going to be any opportunity for these folks to go out, find a lawyer, get that lawyer security cleared through a legal security services agreement with CIA, and get them to give them some advice, you know, in the course of two workdays. 

David: Right. So, they were fortunate enough to have you on their side. What was the first legal move that you made?

Kevin: You know, I was just sort of shocked at how brazen what was happening was. So, you know, so, sort of once I recovered my bearings, we were just sort of talking aloud about, well, what the heck could we do here? And during the course of the call, we basically came upon three ideas that we could try to get things stopped under the Administrative Procedures Act, and we could also try to get things stopped under First Amendment and Fifth Amendment due process clause theories, and then just spent the weekend trying to put pen to paper, to put something intelligible together for a judge before Friday, rather, before the Tuesday morning.

David: And broadly speaking, for anyone who's not familiar, the Administrative Procedures Act claim would have to do with an agency's obligation to follow its own rules. The First Amendment would be a free speech related argument, having to do with the duties to which they had been assigned. And the Fifth Amendment claim, that would be a property related claim, a due process claim. 

Kevin: Exactly right on all that. And the thing that I hadn't thought of turned up during the research and during the oral argument was a Fifth Amendment liberty interest claim, which is very similar to the First Amendment claim. I'm not actually sure how I would differentiate between free speech and liberty interest, but they're different terms. 

David: Interesting, interesting. So, you filed an ED VA in the Eastern District of Virginia, and procedurally, what was the court's initial reaction? 

Kevin: You know, ED VA is referred to as the rocket docket, and that stinks if you're a defendant with a bad case, and it's great if you're playing to, you know, the cause of action. So yeah, I've managed to get my papers in by like five o'clock, like, on the Monday of a holiday, and by 8pm on the holiday, I got a call from the judge’s chamber saying that the judge is in receipt of your TRO application. And, woohoo, we're in. I can honestly tell my clients when they show up at 8am at the gate at the CIA visitor center that they can warn the person that they're talking to that the papers are on the desk of a federal judge who's considering an injunction. So, thank you, ED VA, for being a famously fast jurisdiction. 

And yeah, then we were arguing in front of the judge by Tuesday afternoon, you know, it was just that fast. And the administrative stay, you know, went in place within hours of the courthouse opening on Tuesday.

David: Great. So, in terms of posture, it starts out with the application, the judge issues at administrative stay, and then hears an argument from you and the government. 

Kevin: Exactly. 

David: And at that point, what was the government's response?

Kevin: So, the government was great, you know, you and I were talking before we got on the call about, you know, professional courtesy and, you know, practicing law like a lady or a gentleman. And the assistant U.S. attorneys were a lady and a gentleman, respectively, and they said that they were just in receipt of the papers, you know, and were just trying to get their arms around us, and that they had called over to CIA to try to develop the facts. CIA, not surprisingly, to either of us, having experience in the intelligence community, was being parsimonious with giving the facts even to their counsel. And so, opposing counsel handled it exactly as I would have, saying, I'm not sure of much here, but I've been told the following, and I'll get back to you once I confirm it, Your Honor. 

David: All right, so coming out of the Thursday — sorry, out of the Tuesday hearing, there's the administrative stay in place. And the next question is, will the judge issue the temporary restraining order, meaning that initial phase where the judge has an opportunity to preserve the status quo while evaluating the merits of the case? 

Kevin: Exactly. 

David: So, what, how did that shake out?

Kevin: So then, he gave us some days, obviously, for the for the government to get in a written response, and then a day for us to get our response into the government. Again, ED VA working at warp speed compared to a lot of other federal jurisdictions, much less state and local jurisdictions, and then set another day for hearing. And at that hearing, we both, of course, had a chance to present our arguments, and the judge had a series of questions, narrowing down the issues, that he asked for both sides to brief on a very short turnaround and simultaneously. So, we didn't have a chance to respond to each other's arguments. The papers popped within five minutes of each other, 10 minutes before the deadline to file.

David: And what was the judge interested in? What was the judge focusing in on?

Kevin: So, I put in an Administrative Leave Act claim at the suggestion of a friend, because the Administrative Leave Act changed four days before the Trump administration started, and now includes a provision that you can only be on administrative leave for longer than 10 days unless you are suspected of wrongdoing and under investigation and thought to be dangerous and so on, so forth. So, I just made the point that the government was avoiding the Administrative Leave Act.

The judge, you know, said pretty quickly, well, but there's really not a claim for damages or injunctive relief related to that, so I'll toss that over the side of the lifeboat. That's fine. And then he said that he thought that the CIA was not susceptible to a claim under the Administrative Leave Act on the basis of what I thought was dicta in the Supreme Court case of Webster v. Doe, but in any case, so, I would say his opinion that matters, not mine. So, he tossed out, for practical purposes, the Administrative Leave Act claim. 

He didn't seem to think that we were near the standard of likelihood of success on the merits for success under the First Amendment free speech claim. So, he put that aside as well and narrowed down the issue to whether or not we had liberty and/or property interests under the due process clause of the Fifth Amendment, not in these people's security clearances, which were not at risk or technically in their employment, but as you well stated, whether they had an interest in their employer following the employment regulations that had been set out by the employer, as well as this sort of amorphous thing, whether it's First Amendment or Fifth Amendment liberty interest in these people making statements or holding beliefs in support of the civil rights laws or DEIA, however you want to phrase it.

David: Okay, so it started out with the Administrative Procedures Act claim, the First Amendment claim and the Fifth Amendment claims. The Webster argument had to do with the Administrative Procedures Act, so that's not at issue. The First Amendment claim also not at issue. So, this becomes a case focusing in on two different interests protected by the Fifth Amendment. And the question is, you know, are those interests sufficiently affected, and is that Fifth Amendment protection available such that the judge should intervene? And at this point, right, we're still just at the TRO, the temporary restraining order stage, so it's not the time right for a full decision on the merits. It's really the judge, again, deciding, can the judge, you know, foresee success by the plaintiffs, such that, you know, everything should be frozen up, or should the judge allow the case to proceed but also unfreeze the status quo, right?

Kevin: Exactly, and until he received our answers on his specific questions, it’s really the government's answers that he was interested in about the Fifth Amendment claims he was going to keep the administrative stay in place.

David: And, you know, there was a little press reporting about this, but what was it like in the courtroom, you know, at this time. What was the U.S. Attorney's Office’s approach, and what was the basis of their argument?

Kevin: So, you know, there was press for all three of the arguments, you know, all three of the appearances that we've had over the over the past three weeks, or past two weeks, rather, increasing press at each one of the three hearings. And, you know, I think something that I've remained cognizant of in this is that I'm dealing with career civil servant representatives of the Justice Department, you know? I'm not dealing with political appointees here who are arguing for a political or ideological position. They are professionals who are arguing appropriately about exactly what the powers of the executive branch are and are not. So, there was no personal record or anything like that, you know, going on in the courtroom amongst any of the amongst any of the participants.

What the U.S. Attorney's Office was doing, not surprisingly to you, being a veteran of DOJ, or me, is just arguing on a maximalist interpretation of what the government's powers are. And what this really centered around is Section 50 U.S. Code § 3030, 6e, which involves the authority of the Director of Central Intelligence to fire anyone within the CIA when he believes it is necessary or advisable in the interests of the United States to do so. And the government was arguing for the broadest possible interpretation of that statutory authority, as was upheld by the Supreme Court case of Webster v. Doe in 1988. And we were arguing, and I'll continue to argue, and I continue to really strongly believe, that the government is trying to stretch the constitutionality of the statutory authority under Webster beyond the breaking point with what they're doing here.

David: And how did the judge receive this?

Kevin: Great question. I mean, it's an interesting, intellectual question, which there are good arguments on both sides. Of note, Judge Trenga also happens to be, at the moment, the presiding judge of the Foreign Intelligence Surveillance Court. So, he's someone who is very familiar with the national security statutes, and I believe he's actually — one of my associates told me — he's written substantial academic articles on the state secrets privileged and so on, so forth. So, this was not a matter of informing the court about a subject about which I was expert, and he needed to learn. This was answering questions from an expert which is not usually the case, necessarily, especially national security cases, right? 

David: No comment. 

Kevin: So, it was a high-level argument, a high-toned argument, shall we say? And basically, the government is arguing that, you know, we should just read Webster on its face as upholding this broad statutory authority for the CIA director to do whatever he wants. And my point is that the case that was upheld in Webster, which was a case that was litigated at extraordinary length at the district, circuit and Supreme Court level, then back down to the district and up again through the circuit court level, is that it was a really unique case. It was about a closeted gay man in the 1980s who, it developed during his polygraph, was extremely sensitive about the exposure of the identities of any of his similarly closeted lovers. And the courts at the trial court and court of appeals level made very clear that they were not making any aspersions as to homosexuals as a class, but rather as to the potential for this one individual to be sexually blackmailed by the foreign intelligence service. 

And the Supreme Court upheld the ability to fire Doe without any due process rights, specifically because the Director of Central Intelligence has a statutory authority to protect the sources and methods of American intelligence from being compromised from things such as sexual blackmail of CIA employees. And our view is that that makes perfect sense, and that it doesn't apply to a class of 51 individuals who are being threatened with being fired here, including my 19 plaintiffs, on the basis of something that has nothing to do with national security. In fact, all of our plaintiffs are continuing to hold their security clearance, which shows that they're no security threat whatsoever. So, I continue to believe, not just as an advocate but as a citizen, that my position is correct — that the CIA director can fire anyone for being an individual counterintelligence threat, but they don't have the right to say, gosh, everybody that's touched diversity programs can be fired, especially because all of these programs were congressionally mandated, specifically congressionally funded, and the policy of the president of the United States and the leaders the intelligence community through January 19. 

David: So, in Webster, what we have, right or wrong, is a determination that one particular individual, because of sensitivities and exposure that he may have, presents a personnel security risk. And that's a common idea in the intelligence community with anyone who might get a security clearance — is there anything about the specific person that someone could use against them? You know, a secret that you have, a debt, that you have, whatever it may be. And so, the CIA director is given a lot of authority to make the national security call that a particular person should not have a security clearance, and frankly, sometimes it's better for them, you know, to err on the side of caution because of what's at stake. 

But here, we don't even have that finding. We don't even have that allegation that there's any personal weakness, any potential exposure or compromise, that would lead this group of people to be a national security threat or ineligible for clearance.

Kevin: Exactly. And I would say this also in sort of defense of the changing of social mores and Webster court. The Webster court would have reached the exact same decision about a straight man or woman who was sensitive about the fact they were having an extra marital affair, right? You know, I mean, it was sexual blackmail, period, not sexual blackmail specific to gay folks.  

And, yeah, I think it's right. And, you know, one of the points I made in argument which was disputed, you know, between us and the government, is that there is dicta in Webster that says that Title Seven civil rights claims can be brought against the CIA, but the government is arguing for absolutely uncabined discretion for the CIA director to fire anyone. So, I raised as a hypo with the press, I said, could George Tenet have said on September 12, 2001, I'm firing every Muslim in the intelligence community, because I think that, you know, conceivably, this could be a problem in the War on Terror. Under what the government's arguing here, yes. And I said to the court, and this to a hot response, you know, from the Assistant U.S. Attorney, is under the breadth of authority that they're arguing for the director here, the director could say tomorrow that I'm firing every gay member of the intelligence community, or I'm firing every Black or every woman in the intelligence community. That's the ultimate reduction and absurdity of the logic of what they're arguing here. And he came back and said, no, it's very clear that Title Seven would apply.

David: Interesting. So, I mean, you've talked a lot about, kind of, the government's legal position, the judge’s legal questions. Did they express any thoughts or opinions about the outcome here compared to the legal standard that they're applying?

Kevin: What the judge said, I think, was very interesting. And I tell you, I was kind of dejected as I was listening to the judge read his opinion from the bench on Thursday. But when I went back and looked at the transcript at the end of the evening, I saw the real ray of sunshine. What he said at the very end of giving his opinion was that he was certain that if the plaintiffs went back to the CIA director and said, either I really wasn't involved in CIA, which is the case with some of the plaintiffs and/or I have all these other jobs that are open and available to me that don't involve DEI within the intelligence community, which is true, for example, the young data scientist, that the director would in good faith listen to such appeals, and that, because the judge assumed the director would listen in good faith to such appeals, there was no need for injunctive relief at this time. 

So, I think what he did, I don't think I'm giving away any strategy here, is, I think what the court was suggesting is that my clients make exactly such an appeal to the CIA director, and that he listen to it in good faith, and that if we make that appeal and it's not treated in good faith, that perhaps we'll be back in front of the judge asking for a preliminary injunction.

David: So, at this point, then, the judge denied the TRO, denied the temporary restraining order. The case is alive, and there are potential administrative avenues outside of court that would resolve this precise situation for at least some of the plaintiff? 

Kevin: Exactly.And, yeah, this case could end Monday, right, if the director of Central Intelligence decides that all of the 19 plaintiffs are free to apply for these other positions in the intelligence community, right, which I think would be a fair ending, right? Nobody joins the intelligence community to be a DEI officer, right? That's not a position code, so to speak, within the DIC. You know, they joined to be regular intelligence officers, and maybe for a couple years, they're put in a DEI-related administrative role. But these people who are very expensively recruited, vetted, trained, have dozens of years of experience, in some cases, should be allowed to continue to serve, and that would be a perfectly happy ending to the case, in my view, and, more importantly, the view of my clients and I believe the court. 

David: Well, thank you. And, you know, we'll pause there on the case, and we'll keep an eye on it from here. Let me ask you, Kevin, I mean, separate and apart from this case, you've served around the world, and you've worked very closely with people living in a wide variety of cultures, all in order to protect the United States from spies and terrorists. You know, when a lot of people think about DEI, depending on where they stand, they may have pretty specific ideas about what that means, and they may paint with a fairly broad brush. Briefly, can you speak to the relevance of diversity, especially when it comes to human intelligence, collection and analysis? 

Kevin: Thank you so much, and because, as I said to the court, you know, in CIA, DEIA is about operations, not ideology. It's just absolutely necessary. The hypo that I gave him was that, you know, I would stand out as a short, heavyset white man on the streets of Pyongyang, and that an African American would stand out on the streets of Moscow.

David: Because, ultimately, with human intelligence, right, I mean, the idea is to be able to blend in when you need to, stand out when you need to, but also metaphorically and literally, speak the language of the person you're talking to. And there's a whole body of life experience that goes into that.

Kevin: One-hundred percent.Well said. And you just need, as one of my best bosses at CIA said, different horses for different courses. And I remember our section that we were in at that time was remarkably successful because he had a lot of different kind of horses. And he was canny in which horse he put in what race. 

David: I think the takeaway there, right, is that in the gathering and analysis of intelligence, the breadth of perspectives that diversity brings is of operational benefit. And so, again, it's not an ideological drive alone, or even primarily, that has kind of supported the idea of diversity in the intelligence community for quite a long time. It's the ability to do the job.

Kevin: Absolutely.

David: Kevin, thank you for sharing not only the story of this case, but your thoughts on you know how this all works in the intelligence community in general. We're going to keep an eye on this case, and we'll keep an eye on other impacts of new policies and new legal actions on the national security of the United States, because we can hear about large scale programs and big decisions and executive orders, seeing how they roll down and actually affect operational capabilities and operations themselves, in addition to the public servants who have dedicated their lives to these positions, that's where all of this really comes out. So, thank you very much, Kevin.

Kevin: No, thank you, my friend. It's wonderful being on the program, and I appreciate that the program exists, and I'm flattered that you're paying attention to the case, because I think it's an important case, not only for my clients, but for America.  

David: And for the audience, the case is still ongoing. This case might turn out to be an example of the limits of how litigation can protect the rights of federal employees who have literally put their lives on the line for their country. Intelligence officers’ lives can be dangerous and often involve personal pressures, such as living undercover and not even letting friends know where they work, that you just don't find in many other jobs.  

For national security reasons, the executive branch does have a freer hand when it comes to managing the intelligence community, and that does include employment issues. Among the other risks our intelligence officers take when they agree to serve is banking on their leadership to exercise their discretion fairly and in a way that uses their considerable leeway only to protect national security. If the officers ultimately prevail in this case, it will show the limits of the executive’s discretion. If they do not, the officers’ dismissal in the absence of any claim of misconduct or poor performance will be another example of the impact that unchecked leadership can have. 

Paras: “What Just Happened” is a mini-series of the Just Security Podcast. This episode was hosted and produced by David Aaron. It was edited by me, Paras Shah, with help from Clara Apt. 

Special thanks to Kevin Carroll. You can read all of Just Security’s coverage of the Trump administration on our website. If you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen.