DHS Jan. 6 Investigators Raised Alarm About Being Stonewalled Last Year

A trail of documents shows the DHS watchdog disclosed serious issues with records access in general terms in October 2021.

WASHINGTON - JULY 21: The U.S. Capitol, reflected against a window ahead of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol committee hearing on Capitol Hill in Washington, D.C., on Thursday, July 21, 2022. (Photo by Tom Brenner for The Washington Post via Getty Images)
The U.S. Capitol, seen in a window ahead of the House January 6 committee hearing in Washington, D.C., on July 21, 2022. Photo: Tom Brenner for The Washington Post via Getty Images

After The Intercept broke the news that the Secret Service had deleted text messages from on and around January 6, the Department of Homeland Security’s watchdog came under fire for not having notified Congress that it had discovered the deletions sooner. Top congressional Democrats have taken the extraordinary step of calling for DHS Inspector General Joseph Cuffari’s recusal from the January 6 investigation, following reports that Cuffari knew about the deleted text messages as early as May 2021 but didn’t notify the committee investigating the insurrection until July 14, 2022. On Monday, the Washington Post editorial board likewise called for his recusal.

But documents obtained by The Intercept show that the DHS Office of Inspector General disclosed its access issues in general terms in semiannual reports to Congress in September 2021 and March 2022 and also shared its issues with other inspectors general in October 2021. The reports were met with skepticism by President Joe Biden’s Secretary of Homeland Security, Alejandro Mayorkas, who appeared to make light of their seriousness. Meanwhile, oversight officials tasked with investigating January 6 are growing increasingly frustrated with what they say is DHS agencies’ refusal to cooperate with the inquiry.

While Congress’s January 6 committee investigation has garnered the most media attention, parallel investigations into the raid of the Capitol are also being conducted by inspectors general at the departments of Defense, Justice, and Interior. Inspectors general enjoy an array of tools including criminal investigators, auditors, and forensics specialists, who are authorized to have timely access to all records relevant to IG responsibilities. Inspectors general are independent from the agencies in which they are embedded and cooperate with each other via the Council of the Inspectors General on Integrity and Efficiency, or CIGIE.

In the semiannual report to Congress covering April 1, 2021, to September 30, 2021, the DHS OIG describes the agency’s lack of cooperation with its January 6 probe, without getting into details. “The Department significantly delayed access to OIG’s access to Department records,” the office writes, noting that it is required to disclose when that occurs, “thereby impeding the progress of OIG’s review of the January 6 events at the Capitol.”


What We May Never Know About Jan. 6

Asked about the access issues, a spokesperson for the DHS OIG declined to comment, saying, “To preserve the integrity of our work and protect our independence, we do not discuss our ongoing reviews or our communications with Congress.”

On October 7, Cuffari notified other inspectors general in an email that the DHS OIG was facing an unusual amount of pushback on getting relevant records from January 6 — and that the office had reports that DHS employees were being told not to comply. “We have received communication from DHS employees that they have been directed not to comply with our requests,” according to a copy of the email reviewed by The Intercept. “They have also reported concerns regarding their communications with our office about the January 6th and other previous matters.” He also said the office’s general counsel was meeting with the DHS general counsel on the matter.

On October 18, Mark Greenblatt, vice chair of the CIGIE and inspector general for the Department of the Interior, followed up with Cuffari. “Just checking in to see whether things have improved regarding your access issues?” he wrote. “Let me know if we at CIGIE can help in any way.”

“We have received communication from DHS employees that they have been directed not to comply with our requests.”

Cuffari responded: “DHS OIG carefully documented concerns we had about our access to DHS’ January 6 events at the Capitol documents. I am pleased that we have been able to work through those issues. As I may have mentioned, we are nonetheless issuing a management alert and more formally documenting the concerns in our SAR.” A management alert notifies senior officials at an agency that there is a threat of waste, fraud, or abuse; an SAR is a semiannual report to Congress.

Despite Cuffari’s optimism in October 2021 that the issues with DHS were coming to a close, in the following semiannual report, which covered October 2021 through March 2022, the DHS OIG reported that the access interruptions were continuing. From the report: “During the previous reporting period we included information about Secret Service’s significant delay of OIG’s access to Secret Service records, impeding the progress of our January 6, 2021 review. We continue to discuss this issue with Secret Service.”

While these mentions are vague, they do show that the DHS OIG was actively pursuing the records and raising the access issues outside its own office.

Mayorkas has repeatedly downplayed the notion that the Secret Service was not being cooperative, as well as the OIG’s semiannual reports warning of the same, and instead suggested that the OIG’s requests were unreasonable. Mayorkas may also be concerned about giving ammunition to House Republicans if they come to power following the midterms. Republicans have not been shy to threaten that they are collecting evidence and “building a case” against Mayorkas for not adhering to their hardline border policies.

In a June 14 letter to House Oversight Committee Ranking Member James Comer, Mayorkas wrote that in response to the OIG’s “sweeping” requests, the Secret Service and other DHS agencies have made available “countless documents.” He also complained that many of the records produced “required discussion to ensure proper handling of highly sensitive information.” Of the semiannual reports mentioning the Secret Service’s alleged noncompliance, Mayorkas said he was “concerned” that the report to Congress “does not always provide sufficient context.”

“It is particularly disturbing,” he writes, “that the OIG does not provide any specifics concerning this unfounded assertion, with which the DHS strongly disagrees.”

There may also have been a reason the DHS OIG didn’t disclose the details about the deleted texts in the semiannual report: The office reportedly told the Secret Service later in July that the inquiry into the Secret Service was criminal in nature, and criminal investigations are typically closely held.

The role that the Secret Service played on January 6 is one of the biggest remaining questions about what happened that day. During the unrest, Vice President Mike Pence’s Secret Service detail tried to evacuate him from the Capitol, which would have prevented him from certifying the election results, had Pence not refused. Rep. Jamie Raskin, D-Md., a member of the January 6 committee, called Pence’s terse refusal— “I’m not getting in the car”— the “six most chilling words of this entire thing I’ve seen so far.”

Appointed by President Donald Trump in 2019, Cuffari was unanimously confirmed by the Senate, but that may be where the smooth sailing for him ended. Almost immediately, Cuffari was thrust into a brutal power struggle within the OIG, as The Intercept reported last year. Within months, a misconduct investigation into several top OIG officials was launched. The results of that investigation found, among other things, a senior official fantasizing about a fictional assassin from “Game of Thrones” “taking care of” John V. Kelly, then the head of the agency, and generally painting a picture of acrimony and chaos within the agency. Cuffari is now himself under investigation for launching that investigation.


Inside the Brutal Power Struggle at Homeland Security

The Intercept was not able to immediately corroborate Cuffari’s suspicions that DHS employees were being told not to cooperate with the oversight office on the January 6 investigation, but a briefing memo from early July shows DHS coaching Customs and Border Protection leadership on ways they could push back against the OIG’s records requests. The memo, which cites discussions with the DHS Office of the General Counsel, was shared with The Intercept by a CBP official concerned that its parent agency was attempting to block inspector general oversight.

The memo bemoans “the high number of OIG audits,” noting that “the OIG has been persistent” in its request for “direct, unfettered access to CBP systems.” (The OIG has reported to Congress detailed allegations about being denied access to the same specific systems, among others.) Legally, the OIG is entitled to transparent access to all internal discussions, documents, and other agency records unless a specific law expressly limits the OIG’s access. It isn’t clear that there is any such law.

“OIG’s access to information is not unlimited,” states the memo, which was produced to prep CBP officials prior to a meeting with the DHS OIG. “For example, CBP is not required to provide information if it is … protected from disclosure in the interest of national defense or national security or in the conduct of foreign affairs.”

The briefing also suggests another legal route to obscure OIG access: the Inspector General Act, which established agency watchdogs in 1978 following the Watergate scandal, could be interpreted to include a reasonableness standard that could be used to deny IG records requests.

The memo cites a single passage in the law dictating what should happen when a request for information is “unreasonably” refused by an agency — and uses the passage as a jumping-off point to speculate about what a “reasonable” refusal might look like. “Although the Inspector General Act does not provide guidance on what is considered ‘reasonable,’ it is possible that the cost could be a factor in deciding whether an OIG request is reasonable, if an appropriate decisionmaker determines that compliance is too costly,” the memo reads, also suggesting that requests could be denied if they were deemed “not relevant” or “overly broad.”

Sen. Rob Portman, R-Ohio, ranking member of the Homeland Security Committee, expressed similar concerns about DHS compliance in an August 2 letter to Mayorkas.

Portman’s letter lays blame for the impediments to the DHS OIG’s January 6 investigation on Mayorkas, and a careful reading of Mayorkas does suggest that he wants to limit OIG access. Mayorkas has communicated, Portman writes (emphasis his), “that the Department has worked ‘to provide broad access to information … subject to the Department’s legal obligations’ and noting your commitment to provide ‘timely access to relevant information,’ while also taking issue with the breadth of the requests and their relevancy to the OIG’s review.”

Cuffari had previously told Congress, Portman also notes, that DHS’s general counsel had directed DHS agencies “not to provide the OIG requested documents and information directly” but instead to “first provide responsive records to the General Counsel for review before producing them to the OIG.” This, Portman maintains, is not legally necessary.

For his part, Mayorkas vigorously denies that DHS has played any role in restricting or delaying the inspector general’s access. In the June 14 letter to Comer, Mayorkas writes, “At no time did the Department refuse access to relevant information or impede progress in either of January 6-related reviews.”

However, in an internal memo sent to DHS employees on September 30, 2021 — around the same time Cuffari was raising flags about access — Mayorkas reminds staff that they should cooperate with the DHS OIG. “Any effort to conceal information or obstruct the OIG in carrying out its critical work,” he writes, “is against Department directives and can lead to serious consequences.”

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