Last week was the first time DHS Inspector General Joseph Cuffari testified in front of Congress since Bad Watchdog was released. Lawmakers took it as a chance to hold him accountable for some of the decisions he’s made as inspector general, from his delayed notification to Congress about the missing Secret Service text messages to the sexual misconduct and harassment report his office never published. Investigative reporter Nick Schwellenbach joins Maren to recap the hearing, to break down an explosive admission by Cuffari, and to share updates about Nick’s latest investigations into Cuffari — and an upcoming season two of Bad Watchdog.
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Host Maren Machles: Over the course of the show, we’ve explored instances where Joseph Cuffari has failed to do his job and yet has somehow continued to skirt accountability as inspector general. But last week, Joseph Cuffari testified in person in front of Congress for the first time since we wrapped the show.
And he dropped some explosive admissions about his own record keeping when it comes to his text messages.
Department of Homeland Security Inspector General Joseph Cuffari: Chairman Grothman, ranking Member Garcia, and distinguished members of the subcommittee, thank you for the opportunity to discuss Homeland Security IG’s critical oversight of DHS.
Maren: He was asked to come and speak about his office’s report. It detailed DHS staffing shortages at the border and its impact on morale.
Joseph Cuffari: Our analysis of the survey comments indicated that many recipients felt the current staffing has negatively impacted their health and morale.
Maren: You might remember we ended Bad Watchdog looking at the negative impacts Cuffari’s actions had on his own office’s morale. We ended with a question about accountability: Will Cuffari have to answer for these actions? He certainly never responded to our request to come and answer our questions, but some lawmakers last week took this hearing as an opportunity to force Cuffari to answer some tough questions. Here’s Representative Stephen Lynch from Massachusetts.
United States Representative Stephen Lynch (D-MA): We rely heavily on our inspectors general to cooperate with us. It’s been a good relationship. I’ve dealt with probably three to four dozen different inspectors general over that 22 years, and I’ve been proud to do it. We have not had that with you.
Maren: They bring up some of the most troubling decisions he’s made as the Department of Homeland Security’s Inspector General. Decisions that we’ve covered in great detail throughout this show. Here’s Representative Robert Garcia from California.
United States Representative Robert Garcia (D-CA): The Department of Homeland Security Office of Inspector General has developed a pattern of flawed and misleading investigations, including a failure to report sexual misconduct and harassment at DHS and a failure to investigate and disclose to Congress missing Secret Service text messages from the January 6th insurrection.
Maren: These questions and probes led to one pivotal moment, with a shocking new revelation. Despite all of the flack Cuffari has received for how he handled the Secret Service text message scandal, it turns out Cuffari needed to answer some questions about his own text messages.
United States Representative Glenn Ivey (D-MD): Did you delete text messages from your government-issued iPhone?
Joseph Cuffari: Yes.
Maren: Today, Nick and I are dusting off our microphones and sliding back into your podcast feeds to break down this new revelation about Cuffari’s text messages and unpack what they could mean for Cuffari’s future in this role. I’m Maren Machles, and from the Project On Government Oversight, this is Bad Watchdog.
Maren: So, let me paint a picture for you. It’s Tuesday morning. I’m in Saint Paul, Minnesota, chugging my coffee, logging onto my work laptop, pulling up the House Oversight and Accountability Committee stream. Riveting, I know. But I promise it actually is! Because today is the day. Today, Cuffari will testify in front of Congress for the first time since we released Bad Watchdog.
I pull up my work chat with Nick, who is in Virginia and hasn’t slept in at least 24 hours. He’s been talking to sources and gearing up to report on this hearing, and if you don’t know much about how breaking news works, that means you get little to no sleep, because things are constantly evolving. As a reminder, Nick has been reporting on Cuffari for more than two years at this point, and he’s previously worked for the U.S. Office of Special Counsel.
Maren: So, we were watching, basically watching the hearing together from two different spots in the country [laughs], so I’m really curious: How were you feeling on the morning of the hearing?
Senior Investigator at the Project On Government Oversight (POGO) Nick Schwellenbach: I was anxious, uh, about what would come up during the hearing. And the last time, to my knowledge, that he did face sort of a critical lawmaker audience in a televised hearing was April 2021.
Maren: So, quickly, because this episode is an update it’s going to be kind of different from our other episodes. Nick and I are going to take you through our reactions to the hearing and talk about Nick’s newest investigation, that reveals even more details that weren’t brought up that day.
United States Representative Glenn Grothman (R-WI): The chair may declare recess at any time, I recognize…
Maren: So do you wanna quickly walk through what the hearing was originally supposed to be for, um, what the purpose of the hearing was?
Nick Schwellenbach: Yeah, so the name of the hearing was “Help Wanted”; it was about staffing challenges faced by Customs and Border Protection and to some extent Immigration and Customs Enforcement, um, related to the border.
Glenn Grothman: On day one of his administration, President Biden signaled to the world through words and actions that our borders are open …
Nick Schwellenbach: Inspector General Cuffari was the only witness at this hearing, and he was there to talk about his office’s recent report, finding that deployments to the border related to various needs at the border involving migrants was creating morale challenges and was detrimental to morale, especially inside of CBP and ICE.
Maren: We start with Representative Glenn Grothman, from Wisconsin, the chair of the House National Security, the Border, and Foreign Affairs Subcommittee.
Glenn Grothman: I want to thank Inspector General Cuffari for appearing today, and I look forward to working with his office to ensure continued, robust investigation of DHS.
Maren: Yeah, and then Representative Robert Garcia, from California, just, like, almost immediately launched into a criticism — not just of Cuffari in general, but of this particular report.
Robert Garcia (D-CA): Today I am very concerned that we’re holding a hearing today on the basis of a flawed report and with a witness with a problematic record. Mr. Cuffari is a witness who repeatedly refused to comply with this committee’s requests for meetings and information, and he’s sought to block Congressional oversight at every turn. It’s actually ironic that we are dealing with a politicized and problematic report, given his own department’s staff morale challenges.
Maren: Watching the hearing, it was absolutely thrilling to hear POGO’s work brought up again and again.
Robert Garcia: The nonpartisan watchdog Project on Government Oversight, and this was mentioned by another member, broke a disturbing story that your office sought to censor findings of sexual harassment and misconduct at DHS. Did you report on the morale of CBP or ICE employees consider the effect of sexual harassment and misconduct? I think the answer to that is actually “no.” And, but, would you agree that sexual harassment or misconduct are one factor that could actually impact morale?
Joseph Cuffari: It could be a factor, certainly.
Robert Garcia: Thank you. And yet it was not considered in that report. And so I just want to make that note ...
Maren: But at the same time, the hearing was kind of a mess. It almost felt like two different hearings. Representative Peter Sessions, from Texas, starts to push back.
United States Representative Peter Sessions (R-TX): I think it’s interesting that our friends, rather than asking pertinent questions about what your ideas have been in writing, have been simply to attack you.
Maren: And then Representative Maxwell Frost, from Florida, continues with the pressure.
United States Representative Maxwell Frost (D-FL): Inspectors general are meant to serve as a safe haven for whistleblowers. How is a whistleblower supposed to trust your office when uh members, when members of your own staff don’t even feel safe to report wrongdoing themselves?
Maren: Representative Jamie Raskin, from Maryland, starts asking about the Secret Service text messages.
United States Representative Jamie Raskin (D-MD): In June 2022, there was going to be a reference to Secret Service’s obstruction of questioning about the disappearance of the texts. And that was deliberately removed. Did you sign off on that deliberate removal?
Joseph Cuffari: I, sir, I, I signed off on the removal and I signed a letter specifically to the January 6th Oversight Committee and to this oversight committee.
Jamie Raskin: But why did you remove it?
Maren: And then Representative Grothman comes in again, attempting to get the hearing refocused on staffing shortages at the border.
Glenn Grothman: Uh, your time is expired; I’m gonna say something here. I think what’s going on in the border is the biggest crisis this country has to deal with today. Um, I, I realize, uh, Mr. Cuffari was, uh, Dr. Cuffari was originally appointed by Donald Trump, and some people are never gonna get over that. But today we’re going to focus on the morale of the Border Patrol.
Maren: But Representative Garcia pushes back, saying that these questions are in fact relevant.
Robert Garcia: Mr. Chairman, I just wanna also just add, I think of the, the questions that have been asked so far in the statements on, on, on our side have been all, uh, all within the scope of the hearing. I think that we’re merely pointing out, uh, flaws and issues within, uh, the witness and the witness’ statements. And so, I want to just add that I think our questions so far have been very reasonable and within the scope of the hearing.
Maren: I am curious about why that dynamic came up. And, why were the Democrats asking these questions, that seemingly were unrelated, about, like, his credibility and about all of these, honestly, these POGO investigations? Why were they bringing those things up?
Nick Schwellenbach: So, there’s a few reasons that are obvious. One is he was the sole witness for, for the majority, who, you know, convened the hearing. And as the sole witness it, you know, his credibility issues, his refusal to fully cooperate with Congress in various matters, his decision making — which we’ve reported on — I mean, it, it affects the credibility of his, of his office as a whole and the reports they put out. And that’s part of the problem here.
Even if they’re putting out fantastic reports, when you’re a watchdog, credibility is sort of the coin of the realm.
Maren: Yeah. Let’s talk about this moment between, uh, Representative Glenn Ivey, of Maryland, and Joseph Cuffari, where he basically asks him point-blank, “Are you deleting text messages off of your government-issued phone?” And Cuffari says, “Yes.” Which, my jaw dropped.
Glenn Ivey: Mr. Raskin was asking you about text messages with respect to January 6th. This is with respect to your government-issued iPhone. Did, did you delete text messages from your government-issued iPhone?
Joseph Cuffari: Yes.
Maren: I was really curious. What, like, what did you physically do [laugh] when you heard that?
Nick Schwellenbach: Uh, I, my jaw also dropped. I mean, it was a pretty astounding moment. There was a little bit of a deer in the headlights moment. I mean, he said yes. So he is clearly not lying that he’s deleting these messages. I mean, you wouldn’t make that up.
The sort of follow-up questions from Ivey to Cuffari, and Cuffari’s responses, I found very interesting. I’ve rewatched that clip probably 10 times now.
Glenn Ivey: Okay. And well, when was that?
Joseph Cuffari: It’s my normal practice to delete text messages.
Glenn Ivey: So, you delete them on an ongoing basis?
Joseph Cuffari: That’s correct.
Nick Schwellenbach: Ivey, who’s a former federal prosecutor, by the way, he’s very good at asking questions that kind of cover some of the same ground, just to make sure someone didn't misspeak on, on, on the first occasion. And Cuffari goes on to admit, “I routinely delete them. I’m deleting them on an ongoing basis.” Ivey asks, you know, “Are you backing them up anywhere?” And Cuffari says, “I’m not sure.”
Glenn Ivey: Not sure?
Joseph Cuffari: I’m not sure.
Glenn Ivey: Okay. Well, it’s safe to say based on that, that at the time you deleted them, you didn’t know if they were stored in an alternative place. Is that fair?
Joseph Cuffari: Correct. It’s also fair to note that I don’t use my government cell phone to conduct official business.
Glenn Ivey: All right. So, your testimony today is that these, uh, these text messages that you have deleted, or at least some of them, uh, had no federal information or any information that would be implicated under the Federal Records Act?
Joseph Cuffari: Under the Federal Records Act, that’s correct.
Nick Schwellenbach: So he says, “Well, they are not federal records.” Which, so there’s the Federal Records Act, right—
Maren: Yeah. Can you explain that?
Nick Schwellenbach: Yeah. So I used to work in the federal government, and if you go to any records manager, they’ll say, “There are records, and then there are federal records. And those are not necessarily the same thing under the law.” You could be a federal employee and you send or receive a cute picture of a kitten. Has nothing to do with agency business. There’s a question, should you be doing that on your agency cell phone? But that’s not a federal record. Now, as you go up the agency hierarchy to supervisors, to senior officials, to the very head of the agency, the presumption grows that more and more and more of the records you create are actually technically and legally federal records. And especially if you’re the head of an agency, the head of an office, there’s a presumption that most, if not all, of your records are federal records.
Nick Schwellenbach: I used to work with the Special Counsel at the Office of Special Counsel. Virtually every record she created or received, by the way, was considered a permanent federal record that has to be preserved permanently. We would ship off banker’s boxes of records to the National Archives to store in some cave in Pennsylvania.
Nick Schwellenbach: All the time. And that was back in, you know, 2014, 2015, 2016. Since that time, there’s a greater and greater awareness in the National Archives has issued very clear guidance. And so have federal agencies — by the way, including DHS — that say, “If a text message is a federal record, it must be preserved appropriately.”
And if you’re the head of an office and you’re doing anything involving your agency, there’s a strong possibility that those are federal records. And what was really disturbing is Cuffari basically says he’s making a unilateral decision to delete these records, and that they are not, quote-unquote “federal records.”
Glenn Ivey: Okay. And so they have no connection to official business at all?
Joseph Cuffari: Nothing that would be considered a federal record.
Glenn Ivey: Well, are you using your federal phone for personal purposes, then?
Joseph Cuffari: No, sir.
Glenn Ivey: All right, then, what’s the purpose for using your government-issued phone?
Joseph Cuffari: To conduct business.
Glenn Ivey: But not, not federal business related to your department?
Joseph Cuffari: Not federal business, considering that they are records. It’s a clearly defined statute that places requirements on what a federal record actually is.
Glenn Ivey: All right. So just a final question. So you’ve made a conscious decision with the documents or the messages you've deleted that, uh, the federal records laws did not apply to the, the docu- the, uh, messages you deleted.
Joseph Cuffari: The messages that I deleted. I did not consider those to be federal records, and therefore I deleted them. That’s correct.
Glen Ivey: OK.
Maren: This seems like an incredibly explosive moment in this hearing, this moment between Ivey and Cuffari. In my head, as an inspector general — somebody who’s investigating kind of, record keeping of wrongdoing, you know, making assessments of whether or not fraud, or waste, or abuse was happening — like this is, this is something that is seemingly — he should care about. I am so surprised that as an inspector general, he would be deleting anything. Um, that just, yeah … the moment just hit me as bizarre.
Nick Schwellenbach: He said he unilaterally was making these decisions that these are not federal records, and therefore he can delete them in their entirety and not preserve or back them up. He didn’t even know if they were being backed up. And that struck me as the most problematic, uh, type of response you could possibly have.
Now, if he had responded, “Look, before I delete messages, we assess them carefully. And we made a determination after carefully reviewing every single text message that they were not legally federal records.” If he said that, we wouldn’t be having this conversation right now. That’s not what he said. He said, “I determined they weren’t federal records, and I routinely delete them.”
Maren: OK. So let’s pivot from the hearing, and let’s get into what you were able to uncover through your investigation, because even though Cuffari said that he did not consider these to be federal records, your investigation actually found they werelikely federal records.
Nick Schwellenbach: So, first of all, we know of evidence to the contrary.
There was an email written on December 22nd, 2022, by a DHS OIG employee with records management responsibilities and expertise that discovered that Cuffari was routinely deleting his text messages.
And they discovered this because they were trying to collect those text messages to see if they were responsive to a Freedom of Information Act lawsuit that we filed. And when agency personnel went to Cuffari, Cuffari said, according to this email, “I’m sorry. I don’t have any text messages. I deleted them in their entirety.”
And so, this DHS OIG employee wrote this email and said, like, basically this is, “We’re in trouble here. The custodian, who is Cuffari, was not adhering to policy in terms of preserving records.” And we have sources telling us that there was an assessment made of the records that Cuffari probably deleted, and they concluded that, very likely, these legally were federal records.
Maren: Yeah. Yeah, so, I mean, what does this mean for Cuffari? What could potentially happen as a result of this testimony?
Nick Schwellenbach: The Federal Records Act, which is the statute that applies here, it has language specifically addressing these circumstances. One, if there has been an allegation within an agency, an agency head is supposed to, within a quote-unquote “reasonable amount of time,” inform the National Archives that federal records may have been destroyed.
That allegation occurred in December of 2022. It’s six months later. I think, by any reasonable person’s standards, that’s more than a reasonable amount of time to report the matter to the National Archives. That did not happen. That alone, under the law, under the Federal Records Act, is a basis for the National Archives to bring in the Justice Department.
There’s a second reason under the Federal Records Act, to also bring in, the, the Justice Department. And it’s when the agency head is participating or is believed to have participated in the unlawful destruction of federal records, the archivist, the head of the National Archives, is also supposed to, shall bring in the Justice Department.
And the Justice Department then does the fact-finding and does the investigation.
Maren: Is there a possibility that, you know, the DOJ could hold Cuffari accountable for this? And, and what does that look like, if they investigate and find that he did, in fact, destroy federal records?
Nick Schwellenbach: So, first of all, Federal Records Act prosecutions, or prosecutions for deleting federal records are very rare. They would need to have evidence that his deletions were intentional.
But there are other things that could happen short of a prosecution. They may conclude that there was a criminal violation, but a prosecutor could decline to prosecute. If there’s an unprosecuted violation of the law, which, you know, DOJ prosecutors believe was a violation, I mean, that’s a problem.
Nick Schwellenbach: We quote a whistleblower very high up in our story who just says, “It is implausible that Cuffari is somehow in the dark about the Federal Records Act. And you know, what he’s supposed to do in these circumstances.” Cuffari knows he’s under investigation. Cuffari knows that members of Congress are asking for records from inside of his office pertaining to the sexual misconduct report. And he is just routinely deleting texts on his own, without consulting attorneys or experts. It’s just — it’s astounding.
Maren: All right, well, thank you so much, Nick. I appreciate you doing this.
Maren: The same day the hearing took place and Nick’s investigation was published, Representative Bennie Thompson, who we interviewed last year for Bad Watchdog, introduced H.R. 3846, the “Department of Homeland Security Inspector General Transparency Act.” Bad Watchdog is cited in the announcement. Two days after the hearing, Representative Thompson and Representative Glenn Ivey, who asked Cuffari about his text messages during the hearing last week, co-signed a letter calling for Cuffari to resign. And just this week, House Committee on Oversight and Accountability lawmakers signed a letter asking the National Archives and Records Administration to investigate whether Cuffari violated the law. Both letters cite Nick’s investigation.
You can read Nick’s entire investigation at pogo.org. It’s also linked in the show notes.
[New music plays.]
Maren: We some have great news, friends! Bad Watchdog is coming back for a season two. We are hard at work to bring you some new stories, new bad watchdogs, and new whistleblowers. We cannot wait to show you what we’ve been cooking up.
Bad Watchdog is a production of Investigations and Research at the Project On Government Oversight. This episode was written, produced, hosted and mixed by me, Maren Machles, and based on investigations by Nick Schwellenbach and Adam Zagorin. Editing by Julia Delacroix. Additional research by Julienne McClure. Fact checking by Amaya Phillips. Our theme music was written and recorded by Will Wrigley. POGO’s director of investigations and research is Brandon Brockmyer. POGO’s editorial director is Julia Delacroix. Find out more about our work to investigate and improve the federal government at www.pogo.org.
Maren Machles - Host
Nick Schwellenbach - Guest