December 20, 2018

Reviewing Oversight by the Judiciary Committee

Statement for the Senate Record by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Reviewing Oversight by the Judiciary Committee
Thursday, December 20, 2018
 
Oversight is one of the most important responsibilities of this Legislative Branch. The Constitution requires it. Without oversight, the Members of this body cannot legislate in the best interests of their constituents. Nor can they ensure the government is accountable to the taxpayers. 
 
In whatever capacity I have served my own fellow citizens of Iowa over the years, I have always strived to faithfully carry out my duty to conduct oversight. The same is true of these last four years that I have been honored to serve as the Chairman of the Judiciary Committee.
 
The agencies under the Committee’s jurisdiction are some of the most powerful, and most consequential, in the Executive Branch. Our nation’s law enforcement agencies have the authority to seek to search and seize our property and review our communications.  When warranted, they may bring charges that can result in disgorgement of financial resources or loss of personal liberty.  That’s because these agencies have the equally weighty responsibility to protect us from criminal and intelligence threats of all stripes.
 
These agencies help protect the taxpayer from fraud, hunt down violent offenders and fugitives, protect our senior leaders and judges, and dismantle illicit networks that traffic in illegal drugs, endangered wildlife, and worst of all, human beings.  They safeguard our borders, secure our transportation and cyber networks, and return kidnapped children to their families.
 
That’s just a fraction of the many responsibilities of the Departments of Justice and Homeland Security.  I am grateful for the faithful public service of thousands of law enforcement agents, analysts, lawyers, engineers, scientists, officers, managers, and other employees who make up these agencies.  And that includes, especially, those individuals who have not only done their jobs, but have truly gone above and beyond.
 
A lot of times they don’t like being called whistleblowers, because they never meant to be whistleblowers.  But these employees—hundreds of them in the last four years—have courageously raised their hands and disclosed waste, fraud, abuse, mismanagement, and all sorts of misconduct.  I could not have fulfilled my oversight responsibilities without them. 
 
Because of whistleblowers, the Committee uncovered a pattern of wasteful spending at the U.S. Marshals Service.  It turns out, the Marshals Service spent $22,000 on a conference table for the Asset Forfeiture Division’s headquarters in Arlington, Virginia, and $50,000 a month on a lavishly furnished training facility in Houston, Texas that was used for only a few weeks out of the year.  Thanks to the whistleblowers and the work done by this Committee, I’m happy to report that the Marshals Service closed that facility earlier this year.
 
Whistleblowers have also highlighted examples of gross mismanagement within the agency.  For example, we know that last year roughly 2,000 deputy marshals were using expired or soon to be expired body armor.  We also uncovered instances of unfair hiring practices and other serious ethical violations.  In total, over 100 whistleblowers from the U.S. Marshals Service courageously came forward. I thank them for their bravery and commitment to government transparency.
 
After supervisors ignored their warnings, whistleblowers at the Department of Homeland Security came forward to raise awareness on how smugglers prey on unaccompanied minors and migrants.  A courageous whistleblower told my office that Health and Human services were not conducting thorough background checks on sponsors before they took custody of the children.  Now, all sponsors, and those living with sponsors, are fingerprinted before they can bring a child home. This whistleblower also reported a dangerous tactic used by smugglers to pair kids with unrelated adults to create the appearance of family units.  Smugglers would use kids like pawns in an effort to help adults avoid detention when coming across our border. Now, United States government officials are working with their counterparts in Mexico to investigate and crack down on the smuggling that occurs on the lengthy journey to the United States.
 
Whistleblowers also contacted my office during the Obama Administration about criminals who should be ineligible for DACA, but due to an oversight by the Department, were still receiving benefits, like work authorization. Scrutiny of the program led to more thorough recurrent vetting by the U.S. Citizenship and Immigration Services. 
 
Thanks to more than 10 whistleblowers at the Bureau of Alcohol, Tobacco, and Firearms who courageously reported that their sexual harassment claims were being buried internally, then-Attorney General Lynch updated the sexual harassment policy and a problematic official in internal affairs was replaced.  The GAO is currently assessing how reports of abuse are reviewed and adjudicated at ATF.
 
I have also had the pleasure of working with a number of whistleblowers at the Department of Veterans Affairs that have had the courage to stand up and do what’s right.  Most recently, my office worked with Brandon Coleman after he was put on administrative leave for more than a year and kept from running an addiction treatment program for veterans.  Brandon’s only “mistake” was to point out poor treatment of suicidal veterans.  Eventually, after a concerted effort by my office, Senator Johnson, and the Office of Special Counsel, Brandon was provided a new position within the VA’s Office of Accountability and Whistleblower Protection.  That’s how it should be done.
 
Although the False Claims Act isn’t new, I want to point out that is still working hard for the taxpayers.  Because of the 1986 amendments to the Act, and all of our efforts to strengthen it, whistleblowers were empowered to help the government fight fraud.  In the last four years, thanks largely to whistleblowers, the government has recovered $17 billion under the False Claims Act. 
 
That makes $56 billion since the 1986 amendments.
 
These are only a few examples of what has been achieved because of whistleblowers. They’ve saved our money, made us safer, and held our government accountable. 
 
Oversight leading to better legislation
Our oversight efforts have also helped us write better laws. 
 
Through my investigations, I learned about problems with how the Department of Veterans Affairs reports veterans to the national gun ban list, called the NICS list.  Once you’re on the list you can no longer own and possess a firearm.  And there’s an unfair double standard at work here. The VA never determines a veteran to be dangerous before taking away firearms.  But to get their firearms back, the veteran is required to prove that they are not dangerous. 
 
The Obama Social Security Administration created a rule that would allow it to report beneficiaries to the NICS list without ever finding the beneficiaries to be mentally ill or dangerous.  Just like what the VA does to veterans.  If the federal government is going to attempt to take away a citizen’s fundamental constitutional right, it better have one heck of a compelling reason to do so.  If a person isn’t mentally ill, dangerous, or subject to some other federal restriction, then the government is on shaky ground.
 
This Obama Social Security regulation was a pure and simple unconstitutional gun-grab.  So, I worked to pass legislation with bipartisan support to terminate the regulation, 57-43.
 
I’ve also worked to pass strong legislation to support the critical work done by inspectors general.  In 2016, a broad bipartisan coalition of legislators passed the Inspector General Empowerment Act that reiterated Congress’s intent that IGs be able to access ALL agency records. 
 
It also gave IGs better tools that enable them to do their jobs more effectively, including the ability to conduct investigations without getting agency approval.  It also strengthened public reporting requirements to ensure as much transparency as possible.
 
I have also introduced legislation to create an IG for the federal judiciary to offer those employees the same rights offered to their co-equal executive branch counterparts.  After holding a full Committee hearing on problems with rampant sexual harassment in the judiciary, and raising awareness on a lack of an effective reporting mechanism, the Administrative Office of the U.S. Courts took a step in the right direction by creating the Judicial Integrity Office.
 
I hope through the establishment of this office, the AO will recognize the importance of transparency and accountability.
 
Another example of where oversight led to a legislative solution is the Public Safety Officers Benefit program.  Enacted in 1976, this program provides survivor benefits to the spouses and children of public safety officers who died in the line of duty.  Despite the Department’s own 1-year deadline to resolve all claims, we found that over half of all death benefit claims were pending past the 1-year mark.  As a result, I introduced, and passed bi-partisan legislation aimed at creating more transparency and accountability in the administration of this program. 
 
Oversight of the Justice Department also uncovered gross mismanagement by the Office of Juvenile Justice and Delinquency Prevention or OJJDP for short. That office provides millions of dollars in grants to states to assist them in addressing juvenile delinquency.  Thanks to several whistleblowers, we discovered that OJJDP was issuing millions of dollars to noncompliant states. 
 
I introduced bipartisan legislation which would require the Justice Department to hold states more accountable for fulfilling these grant requirements.  A few days ago, this bill unanimously passed both chambers of Congress.
 
Oversight leading to accountability
Oversight is a critical tool Congress must use to help hold the federal government accountable to We the People.  It is the job of Congress, which represents the People, to ensure the government is operating above board, transparently, and as a good steward of taxpayer resources.
 
Of course, as Chairman of the Judiciary Committee, over the last four years I have focused extensively on the Justice Department proper and FBI.  Some of that focus has been on how the Department handled the Clinton investigation and Russia investigation.
 
With respect to the Clinton investigation, some of the most problematic material discovered thus far is classified.  However, as many now know, the Department had personnel on the Clinton investigation that exhibited extreme political bias against then-candidate Trump. 
 
My inquiry also found that the Department and FBI oddly limited the scope of review to the time Secretary Clinton was Secretary of State, even though evidence of obstruction would have occurred after she left the State Department.  Perhaps defying all sense of legal logic, the Department and FBI decided to write in the element of “intent” into 18 U.S.C 793(f), which covers the mishandling of classified information.  By the FBI’s own admission, highly classified information transited Secretary Clinton’s unclassified non-government server that she used for government business.
 
If any one of us did that to classified information, we’d have the book thrown at us.
The Department and FBI also used immunity agreements at an alarming rate and then-Director Comey began writing an exoneration statement before interviewing Secretary Clinton and 16 other witnesses.  That same exoneration statement labeled Secretary Clinton’s actions as “grossly negligent,” a criminal standard, which was later changed to “extremely careless,” a non-criminal standard.
 
All told, the Clinton investigation was mismanaged to the detriment of our country’s faith in the FBI.
 
Perhaps the most breath taking hypocrisy we identified in the Clinton investigation is that Comey and other FBI officials were using private email to conduct government business while they investigated Secretary Clinton for doing the same.
 
Congress has an obligation to shine a light on wrongdoing, and I certainly hope the Department and FBI has learned their lesson.  If not, eventually, Congress will find out.  And let me say this, our patience is wearing thin.
 
Aside from the Clinton investigation, in 2015 I began looking into the Foreign Agents Registration Act before it was made popular by Robert Mueller.  FARA is a very important law.  It requires agents of foreign governments or enterprises to register with the Justice Department so we know who they are and who they truly work for. 
 
Sunlight is the best disinfectant.  We ought to know where someone’s loyalty lies. 

I held a hearing in July 2017 about the law and potential fixes to it.  As a result, I introduced the Disclosing Foreign Influence Act.  That bill does two important things: (1) it provides the Attorney General with civil investigative demand authority; and (2) it creates oversight checks and balances on the use of that authority. 
 
We must do whatever we can do identify foreign agents spreading propaganda and lobbying on behalf of foreign governments.  During the course of my investigation into violations of FARA I became aware of a group of unregistered foreign agents lobbying for the repeal of the Magnitsky Act.  That law, passed by Congress in 2012, authorized sanctions against a group of Russians responsible for a particularly egregious case of human rights abuse.
 
I discovered that those involved in the anti-Magnitsky lobbying effort were the same cast of characters who organized the now infamous Trump Tower meeting in 2016. This prompted a full-scale investigation into the meeting and the reasons behind it.
 
On May 16 of this year, I’m proud to say that the Committee released approximately 2,500 pages of transcripts, written statements, and exhibits collected during the course of this investigation, as well as records produced by meeting attendees who were not interviewed.  Taken in their entirety, these materials provided the public with the most complete picture of events surrounding that meeting to date.  And in the end, the evidence supported what we had suspected all along—that the meeting was just another attempt by this group of unregistered foreign agents trying to overturn a law that they didn’t like.
 
I also conducted oversight into the FBI’s handling of its investigation into Russian interference in the 2016 election.  As a result of our and other Committees’ investigative efforts, we now know that one of the documents used by the FBI to establish and broaden its early investigation of President Trump was an unsubstantiated political opposition research dossier, prepared by Christopher Steele for the opposition research firm Fusion GPS and paid for by the Hillary Clinton Campaign and Democratic National Committee. 
 
As Senator Graham and I described in our criminal referral of Christopher Steele earlier this year, this dossier was used by the FBI to help justify a FISA warrant to surveil a Trump Campaign volunteer. 
 
I am proud of the role that the Committee has played in bringing additional details about these events into public view, both through the criminal referral of Steele and through the official release of the Committee’s interview of Fusion GPS founder Glenn Simpson, which took place last August. 
 
My oversight work on this Committee has also been bi-partisan.  Ranking Member Feinstein and I shared equally in the questioning of witnesses involved in the Trump Tower meeting, and we worked together to release the results of the Committee’s investigation in May of this year. 
 
Even though I’m Chairman of Judiciary, my oversight focus extended to health care related matters.  Non-profit hospitals have been a particular concern.  One non-profit chain, called Mosaic Life-Care, had been suing low-income patients for debts that should have been covered by the hospital.  Tax-exempt hospitals cannot be in the business of profiting off poor people.  After a 16-month inquiry, Mosaic finally changed its ways and approved debt forgiveness for over 3,000 patients.  That debt forgiveness was worth approximately $16.9 million.
 
And when Iowans began contacting me about the rising cost of EpiPen, I began to investigate. In 2007 a pack of two EpiPen cost $100.  By 2016 the cost exploded to $600.  In a nutshell, Mylan had classified the EpiPen as a generic under the Medicaid Drug Rebate Program rather than a brand name drug.  Because of this incorrect classification, Mylan only had to pay a 13 percent rebate instead of a 23.1 percent rebate.
 
I asked the Health and Human Services Inspector General to look into these practices.  The Inspector General found that the taxpayers may have overpaid for the EpiPen by as much as $1.27 billion over 10 years because of the incorrect classification.
 
Eventually, Mylan settled a False Claims Act case with the Justice Department for $465 million.  Upon learning of that settlement, I expressed my disappointment that it didn’t seem the taxpayers had been made whole.  On August 16, 2018, the FDA finally approved a generic EpiPen, which gives consumers more purchasing options.
 
I also investigated, with Senator Wyden, Gilead’s pricing decisions for its Hepatitis C drugs – Sovaldi and Harvoni.  Our joint report was a ground-level view of how a drug is priced and what steps some drug companies will take to maximize profit possibly to the detriment of patients in need. 
 
Nursing home social media abuse has also been a focus of mine.  New technologies offer new ways for bad conduct to occur. Steps ought to be taken to stop that.  After extensive communication with CMS about these issues, the government issued a guideline that made clear that compromising photos and recordings of residents is a form of abuse.
 
But, we didn’t stop there. 
 
After reading reports about spending and management problems at the Wounded Warrior Project, I looked into that too.  Reports had shown Wounded Warrior was not spending 80.6 percent of their programs expenses on veterans in FY 2014.  My investigation found that Wounded Warrior had been incorporating donated media and millions of dollars in fundraising to get to that 80.6 percent.  A more accurate figure is about 68 percent.  Americans want the Wounded Warrior Project to be successful.  And if its current leaders are listening to this, I want to reiterate my best wishes that it help as many veterans as possible.
 
I’ve also taken a keen interest in the Red Cross over the years.  Most recently, after reports of mismanaged spending after the earthquake in Haiti, I decided it was time to look under the hood.  What I found was troubling, to say the least.  My inquiry found that the Red Cross did not track costs on a project by project basis; instead it used a complex and inaccurate process to track spending.  The Red Cross was simply unable to provide the exact cost of each project and program in Haiti.  Worst yet, my inquiry found that the head of the Red Cross attempted to terminate a review by the Government Accountability Office, and lied about it. I will continue to keep my eye on the Red Cross.
 
During my time as Chairman of Judiciary, I’ve also conducted extensive oversight of our broken immigration system.  For every major terror attack on American soil by a foreign national, I reviewed just how the perpetrators entered the country in the first place. What I found was that often these terrorists, and other criminals, would lie or conceal information on their visa applications to enter the country.  They often knew which visas to exploit to commit their crimes, which ranged from espionage, to theft of trade secrets, to trafficking.
 
The Committee has also looked into how Homeland Security and State vet refugees, monitored the mass migration caravans, reviewed hundreds of pages of visa and immigration documents, and repeatedly raised concerns with the controversial EB-5 investor visa program.
 
When Congress created the program, the goal was to spur growth for rural and underserved areas. Now, the EB-5 program has become an often illicit funding source for big moneyed interests in some of the largest cities around the country. It is no surprise that the Fraud Detection and National Security Directorate also raised national security concerns about the program.
Since 2016, I have written 8 letters, held 3 hearings, and introduced legislation to remedy the glaring problems that plague this program.  I wait with anticipation on the EB-5 modernization and reform regulations the Department of Homeland Security promises to publish very soon.
 
These are but a few examples of what I’ve tried to do right by the people of Iowa and the taxpaying public.  Being Chairman of the Judiciary Committee has been a rewarding experience, one that I will cherish as some of the most productive years of my career representing the great people and state of Iowa.
 
I look forward to continuing my oversight work both as Chairman of Finance and as a senior member of the Judiciary Committee in the next Congress.  After all, as experience has shown, oversight works, and I will continue to fight the good fight on behalf of We the People.
 
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