The Deep State

by Jason Chaffetz

  Hurting Whistleblowers and Hiding It

  He’s not the only one. The TSA, for one, has been especially hard on whistleblowers. In fact, they lost a 2015 Supreme Court case over their treatment of Robert MacLean, an air marshal who exposed several questionable TSA policy decisions. The TSA fired him in 2006 for talking to an MSNBC reporter about “a Department of Homeland Security plan that would have reduced the number of armed marshals on commercial aircraft at a time when intelligence officials were warning of an imminent al-Qaeda hijacking threat,” said the Washington Post in a profile of MacLean on March 3, 2016.

  MacLean was dismissed allegedly for leaking sensitive security information to the media—even though that information was only deemed classified three years after MacLean’s initial disclosure.

  This wasn’t the first time the TSA had been taken to task over their use of sensitive security information (SSI). You remember what Andrew Colsky told us about the way the TSA hides information. Even the agency’s inspector general, John Roth, was frustrated with its secrecy. In his December 30, 2016, report to the Department of Homeland Security, Roth complained about the TSA redacting large chunks of material from critical records when he was trying to investigate ways the TSA could improve security at airports.

  “The redactions are unjustifiable and redact information that had been publicly disclosed in previous Office of Inspector General (OIG) reports.” He goes on to say, “I can only conclude that TSA is abusing its stewardship of the SSI program. None of these redactions will make us safer and simply highlight the inconsistent and arbitrary nature of decisions that TSA makes regarding SSI information. This episode is more evidence that TSA cannot be trusted to administer the program in a reasonable manner.”

  Roth couldn’t have made our point more clearly. When we conducted the “Transparency at TSA” hearing on March 2, 2017, we were trying to get to the bottom of whistleblower retaliation complaints at the agency. Carolyn Lerner was the special counsel in the U.S. Office of Special Counsel (OSC). According to the report she presented to us, that office is “an independent investigative and prosecutorial federal agency that promotes accountability, integrity, and fairness in the federal workplace. . . . And we protect federal employees from prohibited personnel practices, most notably whistleblower retaliation.”

  Lerner’s report concerned “OSC’s investigations of whistleblower retaliation complaints at TSA. [Since 2012] OSC has received more than 350 whistleblower retaliation cases from TSA employees.”

  She focused on four complaints in which “TSA officials . . . experienced involuntary geographical reassignments, a demotion, and a removal, all of which were allegedly in retaliation for protected whistleblower disclosures.” Lerner sought documentation of the complaints from the TSA, with little success. The agency delayed sending her the papers, “asserting claims of attorney-client privilege,” Lerner wrote.

  Her report included an exhibit that clearly illustrated the problem. It was a piece of white paper with everything on it blacked out except the words “OSC Exhibit, March 2, 2017 (Provided by TSA to OSC on October 20, 2016).” Like CBS with the DOJ dossier, “TSA redacted every word of the document, including the date, author, and recipient,” Lerner wrote.

  Explaining the TSA’s actions at the hearing was Huban Gowadia, the agency’s acting administrator. I asked her why Lerner wasn’t getting 100 percent of the information she needed to investigate the whistleblower retaliation complaints. Gowadia claimed that attorney-client privilege prevented her from disclosing everything, but she tried to assure me that she would give the Office of Special Counsel “all the appropriate information.”

  Pressing her, I said, “so what information do you believe the OSC should not see?” She tried to evade a direct answer. “I have to stress that TSA is not an agency independent. We follow guidance that the department gives us. I can assure you that we will follow up with this at the department level.”

  I was not about to let her shove this back under the TSA carpet. “You’re relying on guidance from the department and you’re going to withhold that information from Congress?” I said. Her reply shocked me. “To the best of my knowledge, the guidance is not in writing.”

  “So, wait a second,” I interrupted. “You just made this up? It’s not in writing?” I turned to Lerner, the attorney, to see if this was true. “There is no attorney-client privilege when one government agency is investigating another agency,” she stated firmly.

  Inventing excuses, hiding facts, creating delays to hand over subpoenaed information—this is classic Deep State behavior. We try our best to cut through it, but, as I remarked at the end of the TSA hearing, whistleblowers must “know the deck is stacked against them.”

  A Rare Bright Spot

  One agency where whistleblowers were able to effect change was the U.S. Forest Service. For decades, women in that service had filed reports of sexual harassment, then filed reports detailing the retaliation that followed. Two class action lawsuits (the first as early as 1973) and two “consent decrees” that demanded the Forest Service change the way it treats women didn’t make a difference. All these years later, on December 1, 2016, I found myself chairing a hearing titled “Examining Sexual Harassment and Gender Discrimination at the U.S. Department of Agriculture.”

  I listened as one of the whistleblowers, Denise Rice, a fire prevention technician in California, barely held back tears while she told us how her male boss had grabbed a letter opener, then “poked my breast, both breasts, with a smile on his face in an arrogant way, like he could get away with it.” She detailed several other encounters that occurred over the two-year period from 2009 to 2011. “He has cornered me in the bathroom, he has lifted my shirt up. I would wait till everybody would leave . . . and he would be waiting for me. He called me constantly, he interfered with everything. He stalked me,” she declared. When she complained, Forest Service management “removed all of my supervisory duties, moved me from my location, and isolated me,” she said. And what happened to the boss when his violations were reported? He was allowed to retire, and then was actually brought back as a motivational speaker.

  My colleagues and I were incensed. After hearing from several bureaucrats about how the agency has gotten better at dealing with sexual harassment and acknowledging whistleblowers, Trey Gowdy said, “Well, I just heard the most glowing account of all of the improvements that have been made over the past eight years and you mean to tell me that someone can engage in the conduct Miss Rice just described and avoid all consequence whatsoever?”

  Lenise Lago, the deputy chief of business operations for the U.S. Forest Service, confirmed that “[p]er the federal regulations yes. Someone can retire or resign in lieu of being removed.”

  One of the “takeaways” from the hearing (you can look it up on the OGR website) was that “[h]arassment and discrimination at USDA has gotten worse under the Obama Administration. Witnesses testified sexual assault, harassment, discrimination, and resulting retaliation has increased at the Agency since 2008.” At the end, I promised the Forest Service firefighters, “On behalf of all of the members we will go to the end of the earth to protect you and the other women that have gone through this. . . . To those in management and in other positions . . . we will use every power we possibly can from this pulpit to make sure that they are treated with dignity and never have to go through that again in any way, shape, or form. You will see more subpoenas and more hearings than you can possibly imagine if we hear one thing about any sort of reprisal in any way, shape, or form. I can’t say that strongly enough.”

  We didn’t need to hold any more hearings. After a comprehensive 2018 investigation by PBS NewsHour, where thirty-four women in thirteen states detailed incidents of rape, retaliation, “gender discrimination, bullying, sexual harassment and assault by crew members and supervisors,” there was some positive action. On March 7, 2018, Tony Tooke, chief of the U.S. Forest Service, resigned amid allegations of sexual misconduct. Tooke had onl
y been in charge for six months but he had worked in senior positions at the service for years.

  Bottom line: Congress is going to have to stand up for itself and be more aggressive about enforcing subpoenas. And protecting brave bureaucrats who call out corruption must be a priority.

  Challenging the very foundation of the Deep State is, honestly, a scary and even dangerous thing to do. Washington, D.C., does not want to be disrupted. There will be a price to pay. Just ask a man who has disrupted business as usual . . . the president of the United States.

  What I call the Deep State—not just the traditional uses of the term meant to identify intelligence and military-industrial interests—but the true Deep State, which is the permanent class of Democrats, Republicans, federal bureaucrats, and entrenched Washington, D.C., and Acela Corridor insiders—is not going to go quietly. President Donald Trump is arguably the greatest disruptive threat to the Deep State we have ever seen. This is not a short-term fight.

  As we will see in the next chapter, the Deep State is trying to weaponize everything in their power to destroy President Trump.

  Chapter 11

  The Deep State’s Nightmare

  The political earthquake that was the election of Donald J. Trump to be the forty-fifth president of the United States reverberated across the political spectrum, through the media, and across the globe.

  Within days, my congressional office was being flooded with so many phone calls, my twelve-member staff could not begin to field them all. Few calls originated in my home district, and the vast majority read from the same scripts demanding investigations or tax returns. The panic from Clinton voters was palpable. Donald Trump was going to destroy America, they said. He would crash the economy, wreak havoc on the planet, target gay people, and start World War III. These were not the words of a few extremists. This was a common theme.

  As laughable as these assumptions are in light of current events, the people espousing these views truly believed them. They wanted to convey the imperative that I, as chairman of the House Oversight Committee, open an investigation of the president-elect immediately to stop him from even being sworn into office. As implausible as this demand may seem, we heard it every single day.

  Allegations against the incoming president flew fast and hard—and Clinton voters seemed to accept them all at face value. They wanted to know if I would go after Trump as hard as I had gone after Hillary Clinton and President Obama. The inconvenient truth that Secretary Clinton was never investigated by the committee until after she had stepped down as secretary of state was lost on them. The reaction to the election by the left was nothing short of hysteria.

  The calls continued unabated for months. My constituents could not get through to get the help they needed. After a nearly suicidal veteran was unsuccessful getting through to our office for days, we finally took the drastic and unusual measure of accepting calls only from area codes in our district. All others went to voice mail for a time. During the first four months after the election, our voice mailbox, which could hold hundreds of messages, would fill up daily.

  Although Clinton voters were beside themselves, those of us who had been toiling to get documents and evidence from the Department of Justice and other executive branch agencies were hopeful. Perhaps this president could help us break the Deep State impasse.

  Expectations of the Trump Presidency

  The night of the election, I expected (like most people) that Hillary Clinton was probably going to be elected the next president of the United States. I knew the Oversight Committee was going to have a major task ahead of us, given the number of scandals she had created. Between her unsecured server hosting classified secrets, her Uranium One deal with the Russians, and the many irregularities with her Clinton Foundation charity, I assumed her past actions alone would keep the committee busy for years—not to mention anything she was likely to do once in power.

  Within days of the astonishing and unexpected victory of Donald Trump, I began to realize the implications of this election for our committee. We would finally be able to complete outstanding investigations, including getting to the bottom of the Clinton server scandal, finally getting the documents we’d been fighting for in the Fast and Furious investigation, and perhaps holding people at IRS accountable for their reprehensible targeting of free speech. I was euphoric about the possibilities.

  The announcement that Senator Jeff Sessions would head up the DOJ was a welcome one. Our staff had worked well with Sessions’s staff. As a member of the Senate Judiciary Committee, Sessions was on the record criticizing the FBI’s investigation of Clinton’s email case. A November 18, 2016, headline in the Washington Post read, “Jeff Sessions as Attorney General Could Mean Trouble for Hillary Clinton and Her Family’s Foundation.” Sessions told Fox Business Network’s Lou Dobbs in an October 30, 2016, interview, “I’m uncomfortable [with] the way the investigation was conducted. I think it should have used a grand jury and people who were given immunity should have been taken before the grand jury then . . . and you grill them. Because they will be protective of the people they like and they work with. People will surprise you how they’ll just spill the beans when they’re under oath like that.” In reference to FBI director James Comey’s failure to charge Hillary Clinton, Sessions told Dobbs, “It did appear to me there was sufficient evidence to bring a charge” against Clinton.

  Meet the New Boss, Same as the Old Boss

  With a new sense of optimism, I asked for a meeting with Sessions a few weeks after he was sworn in as the new attorney general. I put together a professional presentation outlining all the previous document requests to which the DOJ had refused to respond. Finally, we were about to get the answers the public deserved. Here we had a Republican president in place. We had a new attorney general who had vocally supported these inquiries. I was granted an hour with the attorney general one morning in March 2017. I drove over to the Department of Justice with two Oversight Committee staffers and we met in the attorney general’s rather large conference room. I had with me a large stack of requests that had gone unfulfilled by the DOJ. We started going down the list.

  At the top of my list was the most egregious—and I believed the most easily resolved—dispute. The failure of Clinton information technology aide Bryan Pagliano to appear before the committee in response to a duly issued subpoena was unacceptable. We had issued a subpoena to compel his attendance, twice, and he had refused to appear before the committee. He could certainly plead “the Fifth” but to snub his nose at Congress and refuse to show up was outrageous and unprecedented. It could not stand.

  This should not even have been a partisan issue. Even Democrats on the House Oversight Committee would agree that congressional subpoenas mean something. I wanted the Justice Department to prosecute Pagliano. Sessions refused: “No. I can’t do that. I can’t talk about it.” The Pagliano issue wasn’t even about Hillary Clinton—it was about whether congressional subpoenas hold any force at the DOJ. This was a black-and-white case. But here was a Republican attorney general telling me, No—we’re not going to do anything with that.

  As I went down my list, anything that had to do with Hillary Clinton was a no.

  He would make no promises or assurances on any item on the list, even the ones that had nothing to do with Clinton or the State Department. By the end of the hour, it became clear this Justice Department was going to be little to no help, same as the Obama administration.

  The same Deep State that I was working with during the Lynch-Holder years was still there. Nothing had changed with a new administration. I couldn’t see that Sessions was doing anything to drain the swamp within the DOJ.

  I pushed hard with Sessions on the Pagliano issue. At the conclusion of the meeting, Sessions promised he would follow up with me, particularly on the Pagliano case because I would not let that go. I couldn’t take no for an answer. I was infuriated that the fate of congressional oversight was in the hands of the attorney general.

 
When Sessions got back to me, I was in Springville, Utah, departing a meeting with a local Chamber of Commerce. I took the AG’s call as I drove and pulled into the parking lot of a local supermarket to be fully focused on the discussion. I expressed to him again my deep frustration with this process. I told him Senator Sessions would never put up with this. As a judge, he would never put up with this. What had changed?

  The Pagliano case was too close to Hillary Clinton. He refused to do anything with it. I couldn’t believe it. I couldn’t believe this was the position of the Trump administration.

  I would later visit with then White House chief of staff Reince Priebus, White House general counsel Don McGahn, and even then–White House chief strategist Steve Bannon. I spoke to them about these requests, hoping they would feel differently than the attorney general. To my genuine surprise, it was clear that none of them was going to push DOJ. All three of them were receptive and sympathetic to what I was asking for, but they were taking a very hands-off approach. The result was that the Deep State got to continue to run things.

  I went from the euphoric high of Donald Trump being elected in November to the crushing reality in March that nothing was going to change. Further, it was clear that neither Speaker Paul Ryan nor House majority leader Kevin McCarthy had any desire to fight this fight. Their focus was on other things. They didn’t place oversight high on their priority list. Not even the other chairmen of House committees were on board. In particular, House Judiciary Committee chairman Bob Goodlatte, who could have been very influential on this issue, didn’t want to do anything to rock the boat.