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Homeland Security’s Embattled Watchdog Faces Probe

(Illustration: Renzo Velez / POGO; Photo: USMEPCOM)

The Department of Homeland Security’s (DHS) top watchdog, Joseph Cuffari, faces a previously undisclosed and escalating investigation — one that will apparently address persistent questions about whether he illegally “retaliated” against former high-ranking employees. As such, the probe signals the latest phase of a nasty internecine battle that refuses to fade away, despite Cuffari’s successful bid to force out his former top deputy, as other internal critics left amid bitter recriminations.

According to a non-public email sent at 8:30 p.m. on Friday, January 28, 2022, and obtained by the Project On Government Oversight (POGO), Cuffari’s current top deputy in his DHS Office of Inspector General (OIG) instructed all staff to cooperate with the probe, if called upon to do so by investigators.

The investigation is being conducted by the Integrity Committee of CIGIE, the Council of Inspectors General on Integrity and Efficiency. The Integrity Committee (IC) is the federal government’s “watchdog of the watchdogs,” a little-known entity that monitors allegations of wrongdoing by inspectors general and their top staff. It’s also an entity long criticized for being too secretive, too slow, and too selective in what it investigates.

“DHS OIG has been cooperating fully in the IC’s investigation, and it will continue to do so,” the January 28 email says, sent by Cuffari’s deputy, Glenn Sklar. “You are instructed to cooperate if you are approached.”

The stakes in the Integrity Committee investigation are potentially high. For one thing, the ongoing probe into Cuffari could take months or more than a year to complete, casting a shadow over his role and decisions in the meantime. And if Cuffari’s allegedly serious misconduct is substantiated, such a finding would represent a major blow to his leadership as DHS watchdog.

Cuffari runs one of the federal government’s most important oversight offices, keeping tabs on more than 240,000 DHS employees. He has the authority to investigate and review everything from immigration enforcement to surveillance practices to intelligence failures in the run-up to the January 6 breach of the U.S. Capitol.

As DHS inspector general, Cuffari oversees Customs and Border Protection, the nation’s largest law enforcement agency, which has come under fire for serious alleged abuses along the border. His jurisdiction also includes Immigration and Customs Enforcement, the U.S. Secret Service, the Coast Guard, the Federal Emergency Management Agency, the Transportation Security Administration, U.S. Citizenship and Immigration Services, and the Department of Homeland Security’s Office of Intelligence and Analysis.

The January 28 email does not mention the target of the investigation or its subject matter. “They were trying to bury the lede,” a federal source said, referring to the timing of the email and the lack of information on the investigation’s scope and target. The investigation into Inspector General Cuffari began in May of last year, according to written answers Cuffari transmitted to a House oversight committee in a previously unreported June 2021 letter.

In Cuffari’s letter, he told Congress that the Integrity Committee was reviewing whether he had authorized an investigation by the law firm WilmerHale “in ‘retaliation’ for unspecified protected activity of unspecified persons.”

Those unspecified persons who were targets of the WilmerHale investigation turned out to be high-ranking critics of Cuffari himself and were some of his most senior employees inside the agency’s watchdog office.

The recent widely circulated email from Cuffari’s number-two official to all Homeland Security OIG staff signals that the investigation is ramping up, and getting closer to potentially exonerating him, or finding him at fault.

CIGIE’s Integrity Committee is conducting its probe with help from a team of professional investigators from the Transportation Department’s watchdog office. Probes that get to this phase in the Integrity Committee process normally do so after an accused inspector general or other senior OIG officials have an initial opportunity to refute the allegations against them. After that, the Integrity Committee only launches a full-blown investigation when the target's refutation is not sufficiently persuasive.

Those unspecified persons who were targets of the WilmerHale investigation turned out to be high-ranking critics of Cuffari himself and were some of his most senior employees inside the agency’s watchdog office.

At the same time, the Integrity Committee only explores reports of serious misconduct by inspectors general or the senior staff who directly report to them, not minor offenses or offenses allegedly committed by rank-and-file employees. The probe of Cuffari is one of only four investigations across the federal government that the Integrity Committee launched in the last fiscal year.

A DHS Office of Inspector General spokesperson emailed POGO that the office, “as a matter of policy, does not comment on pending investigations.” The Council of Inspectors General on Integrity and Efficiency declined to comment.

“Complaints and Countercomplaints”

President Donald Trump nominated Cuffari as inspector general, after he served as an advisor to a pair of GOP governors in Arizona, Jan Brewer and Doug Ducey, who pushed tougher immigration enforcement policies. During his Senate confirmation hearing, Cuffari said he did not work on implementing immigration policies for those governors. Prior to his nomination, Cuffari also worked in the federal government in various jobs, including as a criminal investigator within the Justice Department’s watchdog office.

Cuffari’s former deputy and others were leery of his nomination as inspector general. Among other issues, they raised concerns that a then-unaccredited university with a reputation as a “diploma mill” had awarded him a doctorate in 2002. Despite the criticism, Cuffari regularly references his PhD when signing letters to Congress and on OIG reports.

After the Senate confirmed him and he took the helm of DHS OIG, that deputy also made disclosures to both Congress and the Integrity Committee in late 2019 that Cuffari improperly withheld publication of an OIG report on the department’s technology shortcomings in regards to the tracking of separated migrant families and misled Congress about the delay. That previously unpublished complaint also asserted that Cuffari wanted to “forbid use of the words ‘fail’ and ‘lack’ to describe the Department’s actions so, as he explained, we (the OIG) can have a better relationship with DHS officials.” The Integrity Committee declined to examine those allegations.

In addition, Cuffari himself petitioned the Integrity Committee to investigate his former deputy and others — and the committee rejected his proposal without providing an explanation.

When that attempt failed, Cuffari sought an investigation by a prominent Washington law firm in early 2020. Cuffari’s office awarded WilmerHale a contract to investigate his deputy and other high-ranking subordinates who had raised concerns regarding his doctorate, the family separation report, and other issues, paying the firm about $1.4 million. He has maintained he had no role in the choice of WilmerHale and that the contract made up less than one percent of the OIG’s budget. He has also told Congress that, neither “did I or anyone at DHS OIG telegraph a particular outcome to WilmerHale.”

WilmerHale’s report vindicated Cuffari. Its section dealing with Cuffari’s internal critics was entitled, “Undermining the New IG,” making the case that his then-deputy and others had sought to subvert his authority. The report states that the behavior of Jennifer Costello, who served as his deputy inspector general, “exacerbated an atmosphere of mistrust and unprofessionalism to the detriment of the agency and its mission.” It also cited “complaints and countercomplaints filed with the Integrity Committee” as well as a variety of other actions taken by Costello and two other DHS OIG employees.

Regarding the allegation that he delayed publication of the family separation report, WilmerHale cited Cuffari’s explanation, but did not assess it. According to the WilmerHale report, Cuffari said there was the “erroneous idea that he had ‘parked the report’ and that he was sitting on it for political purposes.”

The OIG did not address questions about the WilmerHale report or Costello’s complaint.

Some eight months before the law firm’s report was finished in December 2020, Cuffari placed Costello, its principal target, on administrative leave. While on leave, she faced an investigation for improperly representing herself as acting inspector prior to Cuffari’s Senate confirmation. Cuffari then terminated her employment.

In August, WilmerHale sought to interview Costello as part of its investigation, but she refused to cooperate and, given her departure from the OIG, she could not be compelled to do so. Her attorney told POGO that the WilmerHale investigation was an inappropriate use of taxpayer dollars and that Costello has a pending appeal before a government panel that handles employment complaints. POGO did not obtain Costello’s complaint from her or her attorney. (Two other targets of the law firm’s investigation left the OIG and did cooperate with WilmerHale.)

A month after the WilmerHale report was finished, Cuffari’s office released it to reporters who had filed Freedom of Information Act requests. After an initial round of news coverage, close observers began asking questions about WilmerHale’s review, including its examination of Cuffari’s high-ranking staff who had filed complaints about him. WilmerHale’s examination of that activity is now the focus of the Integrity Committee’s investigation.

In Cuffari’s June 2021 letter to Representative Bennie Thompson (D-MS), the chairman of the House Homeland Security Committee, he disclosed the Integrity Committee’s investigation into his conduct, and also took strong exception to his ousted deputy’s complaint that the WilmerHale report was retaliation against her for her criticism of him — to Congress and others.

Cuffari’s letter warned explicitly that, “Sweeping WilmerHale’s findings under the rug, as the CIGIE IC is attempting to do, will destroy DHS OIG.”

Whether his contention about destroying DHS OIG will prove correct or not, there is no doubt that if the Integrity Committee finds that the WilmerHale review amounted to illegal “retaliation” by Cuffari against his ousted deputy or others, such a finding could be damaging to him personally.

Given Cuffari’s excoriation of the Integrity Committee in his letter to Congress, the January 28, 2022, email to Cuffari’s staff instructing them to cooperate with its investigation amounts toa distinct shift in tone.

Impeding an Integrity Committee investigation can create risks. Key Republican senators called for the removal of another inspector general last spring, in part because she resisted a different Integrity Committee probe of her alleged misconduct.

That other inspector general’s “willful actions to impede an investigation into her own alleged misconduct and support of an environment that condones the intimidation of witnesses show that she lacks the attributes reasonably expected of an IG,” wrote Republican Senators Chuck Grassley (IA) and Ron Johnson (WI). The Integrity Committee has a policy that allows it to “make an independent finding of wrongdoing” if an accused inspector general fails to cooperate with a committee investigation.

A Pattern of Troubled DHS Watchdogs

Meanwhile, there have been other complaints about Cuffari. On April 27, 2021, a former attorney in the DHS watchdog office filed a complaint with the Integrity Committee about alleged interference by Cuffari and others on his leadership team in a high-profile whistleblower investigation. POGO first reported on this complaint last year. Like the vast majority of cases it considers, the Integrity Committee closed the matter, deciding not to investigate further. POGO also broke news that Cuffari rejected proposals by his career staff to examine the use of force at Lafayette Square in June 2020 and how the Secret Service was handling the pandemic.

As it turns out, Cuffari is far from the first DHS watchdog to face scrutiny.

As it turns out, Cuffari is far from the first DHS watchdog to face scrutiny. One recent acting inspector general, John V. Kelly, directed auditors to water down reports on disaster responses by the Federal Emergency Management Agency, leading to the retraction of 13 audits. Last month, Charles K. Edwards, who served as acting inspector general from 2011 through 2013, pleaded guilty to theft of proprietary software from the DHS OIG. He has not been sentenced yet.

The January 28 email to Cuffari’s staff mandating cooperation with the Integrity Committee probe came two weeks after the Justice Department issued a press release announcing Edwards’ guilty plea. As the legal case against one former DHS OIG leader reached its conclusion, and the fate of his latest successor began to look ever-more precarious, a federal source in touch with Cuffari’s watchdog office said the view of many who work there is, “Here we go again.”