Missing Jan. 6 texts add to scrutiny surrounding DHS watchdog
A second failure to sound the alarm on missing text messages is renewing scrutiny of Joseph Cuffari, the inspector general at the Department of Homeland Security (DHS), who is facing a barrage of calls to step aside from his review of how the agency responded to the Jan. 6, 2021, attack on the Capitol.
Cuffari’s probes into Jan. 6 collided with an unusual roadblock: text messages at both the Secret Service and for top Trump DHS officials could not be accounted for or were erased in the days after the deadly attack.
But the inspector general waited months to alert DHS leadership or Congress — a possible violation of the law that has lawmakers calling for him to recuse himself from his investigation.
Criticism of Cuffari, however, far predates the mystery around DHS’s text messages, stemming from a series of passed-over investigations and narrowed lines of inquiry.
“His tenure as the DHS inspector general — yes, it’s riddled with this pattern of missteps or, you know, flubs along the way. But then they are almost always met with total resistance to admitting he did anything that could be even questioned or just kind of being like, ‘Buzz off, I’m the IG,’” Liz Hempowicz, policy director for the Project of Government Oversight (POGO), told The Hill.
“And there’s been no consequences for that. And so we see now the outcome of that.”
Cuffari, a former adviser on military issues for Arizona Gov. Doug Ducey (R), was nominated to his post by former President Trump in 2019.
Critics complain the watchdog for one of the largest government agencies has instead quashed multiple investigations into wrongdoing.
For the second time in a week, lawmakers on the House’s Oversight and Reform Committee and Homeland Security Committee on Monday called for Cuffari to hand off the investigation, this time after obtaining emails showing his deputy at one point abandoned efforts to obtain missing text messages and then minimized the issue in a memo to DHS leadership.
The two panels wrote they made the call “in light of the cascading revelations about your failure to conduct this investigation effectively and communicate truthfully with Congress.”
Cuffari has been at the center of the storm since alerting Congress that some Secret Service agents’ text messages for Jan. 5 and Jan. 6, 2021, were “erased” as part of a device replacement program.
The agency contends any text messages that might be missing were lost through a software transition.
Cuffari alerted lawmakers of the missing texts in July, though he had been aware the texts were lost since December of last year, the committees said.
It was later revealed that Cuffari failed to disclose that text messages on Jan. 6 for top Trump-era DHS officials, including then-acting Secretary Chad Wolf and his deputy Ken Cuccinelli, were lost when their phones were erased during the transition.
There are multiple provisions in the Inspectors General Act that require notifying agency heads or Congress about “particularly serious or flagrant problems,” in some cases within seven days. That also includes using semiannual reports to note “any attempt by the establishment to interfere with the independence of the office.”
The state of the investigation has lawmakers so concerned that in the House, the committees asked the Council of the Inspectors General on Integrity and Efficiency (CIGIE) to appoint an outside inspector general to take over the DHS’s Office of Inspector General (OIG) Jan. 6 investigation.
Senate Judiciary Committee Chairman Dick Durbin (D-Ill.), who has penned past letters questioning Cuffari’s conduct, has also asked Attorney General Merrick Garland to intervene and take the reins of the investigation.
“Inspector General Cuffari’s failure to promptly notify Congress of the Secret Service’s months-long refusal to produce text messages that OIG had requested in February of 2021, or of the Secret Service’s belated admission that those texts were erased as part of a device replacement program, calls into question his ability to effectively and objectively conduct the criminal investigation he recently opened,” Durbin wrote to Garland.
The DHS OIG has not responded to multiple requests for comment from The Hill about the various calls surrounding Cuffari, nor did the office respond to request for comment for this piece.
Concerns over Cuffari date back to at least 2012, when he was serving as a special agent for the Justice Department Office of Inspector General (OIG) in Arizona.
A 2013 report from the agency released late Wednesday revealed investigators did “not believe” Cuffari’s rationale for failing to inform his bosses of his decision to testify in a case brought by an inmate against the federal government. He also referred the inmate to two “lawyer friends of his” who would serve as counsel. That report determined Cuffari inappropriately used his office to help benefit his friends while his involvement in the case would have required prior approval from a supervisor.
Cuffari noted the matter in his pre-confirmation survey, but responded no when asked during the confirmation process if he’d been the subject of a complaint to an administrative agency.
And in the three years Cuffari has run the DHS OIG, he has declined to investigate major events involving the agencies he helps oversee or imposed limits on their reach.
Earlier this year, he declined to investigate after Border Patrol officers on horseback corralled Haitian migrants. Instead, the matter was handed off to its Office of Professional Responsibility.
In 2020, he refused to initiate an investigation into the Secret Service’s involvement and response to the clearing of protesters who had gathered in Lafayette Square just outside the White House that June to protest the murder of George Floyd at the hands of police.
According to reporting at the time from The Washington Post, a source in Cuffari’s office said he initially suggested the Secret Service director himself look into the agency’s actions at Lafayette Square — a move that would be a major conflict of interest for the director.
Ultimately, the agency said it had to be strategic, weighing its resources in determining what proposals to take. An OIG spokeswoman also told the Post that other agencies were already reviewing the matter.
“DHS OIG closely coordinated with Justice and Interior OIGs, who were each planning reviews given the greater presence and participation of their agencies on that day,” Cuffari’s office said at the time.
Hempowicz says both incidents are major red flags.
“That goes back to, again, demonstrating either a fundamental misunderstanding of what his role is in this oversight system or just a total disregard for it,” she said.
“It doesn’t actually matter to me which one it is. Either he understands the mission and doesn’t care to meet it, or he doesn’t understand it. Either way, he should not be an inspector general, let alone the inspector general at the Department of Homeland Security.”
Cuffari has, according to lawmakers, also stepped in to narrow investigations or to remove information from reports.
That was highlighted in a bipartisan letter from the Senate Judiciary Committee asking Cuffari both about an unpublished report detailing widespread employee concerns over sexual harassment at DHS as well as a move by Cuffari to “substantially restrict” another report evaluating how the agency complied with a law requiring the removal of law enforcement officers with domestic violence convictions.
The report Cuffari did not publish dealt with results from a 2018 survey, the year before he was confirmed, that found some 10,000 of 28,000 DHS employees who responded said that they have experienced sexual harassment or misconduct at work, while a substantial percentage said reporting that behavior negatively impacted their careers.
Another set of emails obtained by POGO, Hempowicz’s organization, dealing with the domestic violence report, showed “the final version omitting findings and recommendations concerning DHS’s failure to adequately investigate or discipline personnel alleged to have committed domestic violence,” the committee wrote.
Cuffari pushed back in a 17-page response, saying the report about the sexual harassment survey was “plagued by problems from the outset” and adding that he was not aware of the survey until late 2020. He then said the report was delayed over a staff disagreement on how DHS should label the behavior of those being reprimanded.
In the case of the domestic violence report, Cuffari said again that inspectors and legal staff had differing opinions on how to address those who were convicted versus charged with domestic violence.
The senators on the Judiciary Committee were largely unsatisfied with his response. They penned a second letter asking for more insight into his decisions, including a claim that an “inspector general is in no position to substitute the subjective preferences of an inspector” over those of legal staff and managers.
“What is the basis for the assertion that an OIG is in no position to question agency decision making?” Durbin and ranking member Chuck Grassley (R-Iowa) asked in the follow-up letter.
In some cases, Cuffari has taken on investigations with political implications.
In one, his office documented how Wolf, the former acting secretary, altered and delayed a report showing that Russia aimed to interfere in the 2020 U.S. election.
And Cuffari found his office criticized by the Biden administration following a report on an immigration detention facility in New Mexico.
“We have serious concerns about the accuracy and integrity of this report,” U.S. Immigration and Customs Enforcement said in a letter to the inspector general that was published with the report. “In a number of instances, it appears OIG has falsified or mischaracterized evidence, and has ignored facts presented to it to achieve preconceived conclusions.”
Internally, Cuffari has dismissed the torrent of criticism of his office, according to a memo obtained by Politico.
“Because of the U.S. Attorney General guidelines and quality standards, we cannot always publicly respond to untruths and false information about our work,” Cuffari wrote in an email Monday. “I am so proud of the resilience I have witnessed in the face of this onslaught of meritless criticism.”
Even with mounting pressure, there are few mechanisms for forcing Cuffari to recuse himself from an investigation.
While the House committees have asked for the CIGIE to appoint another inspector general to take over the investigation, the council says it cannot simply do that.
“CIGIE does not have the statutory authority to ‘appoint’ an Inspector General for any reason, to include the performance of investigatory or other work within the statutory jurisdiction of another Inspector General,” its executive director, Alan Boehm, said in a statement to The Hill.
“In the past, CIGIE has assisted OIGs in situations where an Inspector General has independently concluded that his or her office could not perform oversight on a particular matter within its jurisdiction due to the possibility of a conflict of interest,” Boehm noted, adding, “CIGIE is willing and able to continue to provide this service to any Inspector General at the request of such Inspector General.”
But unless Cuffari asks for such assistance, it can’t be provided.
The only way to remove Cuffari from the investigation would be for President Biden to fire him or, as Durbin requested, for Garland to use his law enforcement authority to rescind the law enforcement powers afforded to Cuffari, effectively overtaking the investigation.
The Justice Department has not responded to Durbin’s plea that he do so.