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Project on Government Oversight

New Probe of White House Already Foundering; Jurisdiction and Subpoena Limits Hamstring Questionable Special Counsel Gambit

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April 26, 2007

Carol Goldberg, PEER; (202) 265-7337
Jennifer Porter Gore, POGO; (202) 347-1122

WASHINGTON — The recently announced U.S. Office of Special Counsel (OSC) probe into political activities by White House officials and appointees is off to a bumpy start and looks like it will be toothless, according to public interest groups including the Public Employees for Environmental Responsibility (PEER) and the Project On Government Oversight (POGO).

The complications start with Special Counsel Scott Bloch's pledge to investigate the White House—just as a White House-commissioned investigation into Bloch himself enters its final stage.

In an April 25 letter to White House Counsel Fred Fielding, attorney for the public interest groups and anonymous employees Debra Katz asserted, "First, the ongoing investigation of Mr. Bloch compromises his own impartiality in leading the investigation of Mr. Rove and other White House officials.  On the one hand, the pending charges against Mr. Bloch supply him with an incentive to whitewash violations of the law in the hopes of currying favor.  On the other hand, were he to make findings of violations, his findings could be viewed as an act of retribution and/or coercion to prevent the President from taking appropriate action against him, which he would surely portray as retaliation."

Bloch's plan to combine several unrelated high-profile investigations (the firing of U.S. Attorneys, missing Karl Rove emails and political briefings of General Services Administration managers) also has prompted protests both inside and outside the OSC.  Emerging snags include:

  • OSC likely does not have jurisdiction over a complaint filed by former U.S. Attorney David Iglesias (a complaint solicited by Bloch) alleging discrimination on the basis of his service in the Navy Reserve.   Presidential appointees who have been confirmed by the Senate are not entitled to claim statutory protection against decisions regarding their continued tenure.  In addition, there are profound separation of powers questions about applying statutes to block presidential prerogative to remove his own appointees;

  • OSC has only a qualified subpoena power and lacks the authority to enforce its subpoenas in court.  If a party simply refuses to comply, OSC must obtain the consent of the General Counsel of the Merits Systems Protection Board, headed by a Bush-appointee, who would then be charged with bringing an enforcement action; and

  • The legal basis for an OSC investigation into e-mails from White House staff sent on Republican National Committee accounts, as well as OSC's power to order surrender of the missing missives, is unclear at best.

"It makes no sense for Scott Bloch to investigate the White House while the White House investigates Bloch," stated PEER Executive Director Jeff Ruch, noting that Bloch has told allies that the White House has twice asked Bloch to resign but Bloch, who is in the midst of a fixed five-year term, can only be removed for cause.  "Bloch should recuse himself from this case and hand the matter over to an outside entity, such as the relevant Inspectors General or Congress."  

"What we have here is a mutual investigation society," said POGO Director of Investigations Beth Daley.  "This is the bureaucratic equivalent of a mouse trying to swallow an elephant. The OSC has no standing to conduct the investigation and Scott Bloch cannot possibly investigate the White House while it is investigating him."

The ongoing investigation of Bloch undertaken by the Office of Personnel Management Inspector General at the behest of the President's Office of Management & Budget comes as a result of a complaint filed by his own staff members and whistleblower groups, including POGO and PEER, alleging a host of misconduct charges against Bloch.  Ironically, one portion of that complaint concerns Bloch's improper interference with the handling of Hatch Act cases, the very statute that Bloch is now invoking as the basis for looking a White House political briefings.

"Scott Bloch brings the investigative acumen of an Inspector Clouseau to a very complicated and delicate matter," Ruch added, noting that Bloch has admitted that he has never undertaken an investigation of this magnitude.  "It is not that Bloch has lacked the opportunities to conduct complex investigations since every virtually whistleblower in town goes to the OSC but Bloch has ignored them all.  It is only when a probe serves his political agenda that he latches onto it as if it were the last helicopter leaving Saigon ." 

Letter to White House Counsel Fred Fielding from Debra Katz

White-House commissioned investigation of Scott Bloch

View the portion of the complaint detailing allegations of Hatch Act irregularities by Bloch


Media reports about attempts by the Bush White House to remove Bloch:
http://www.weeklystandard.com/Utilities/printer_preview.asp?idArticle=12769&R=EE02229

http://www.bendweekly.com/Opinion/1162.html 

Founded in 1981, the Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.

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