CBS uncovered a fascinating detail. One of the DOJ officials they requested documents from, Kevin Carwile, chief of the Capital Case Unit, sent an email on February 1, 2010, vowing, “I haven’t forgotten you . . . I will call you in the morning.” To whom he sent that email and what they might discuss when he finally did call, no one outside the DOJ knew.
The FOIA laws used by CBS to uncover documents are important. According to the website FOIA.gov, “Since 1967, the Freedom of Information Act (FOIA) has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government.” Watchdog groups like Judicial Watch have had some success in getting information by using FOIA, but Deep State dragons have figured out that they can hamper those requests by abusing exemptions to the act.
We ran up against that strategy when we were investigating the TSA in May 2014. The OGR was given a report with the unwieldy title “Pseudo-Classification of Executive Branch Documents: Problems with the Transportation Security Administration’s Use of the Sensitive Security Information (SSI) Designation.”
In it, we were flat-out told by Andrew Colsky, the Sensitive Security Information director for the TSA, that “currently I sit in the Freedom of Information Act office. And one of the first things I was told when I got there from both attorneys and FOIA processors was, oh yeah, don’t worry about it, because if you come across embarrassing information or whatever, [the chief counsel] will just hide it and come up with an exemption; because if you cover it with a FOIA exemption, it’s so hard for the other person to challenge it, and it will be costly and difficult for them to challenge it, and they’re probably never going to see it anyway, so you just get away with it. That’s the way it’s done.” (That bold-faced admission is lifted directly from the report, by the way.)
Colsky, as the SSI office director, would know. His department, according to the TSA website, oversees “information that, if publicly released, would be detrimental to transportation security.”
In other words, SSI decides secrecy based on whatever the TSA says it is. And here we have a guy who knows what he’s talking about flat-out telling you how the Deep State gets around our congressional duty to provide oversight.
Standing Up to Congress
Agencies play a whole other series of games when they receive a congressional subpoena for witness testimony.
First, witnesses refuse to show up when they’re scheduled to testify. The most egregious case of that tactic I ever saw was that of Bryan Pagliano. Having served as the IT director of Hillary Clinton’s 2008 presidential campaign, Pagliano was the specialist Hillary tagged to set up the private email server. He set it up in the basement of her home in Chappaqua, New York, in 2009 once she became secretary of state. When the House Select Committee on Benghazi held hearings in 2015, Pagliano was someone they wanted to talk to so they could track down all Clinton’s emails relating to the attack.
Chairman Gowdy issued a subpoena for Pagliano’s testimony. His lawyers sent a letter back stating that the IT guy would assert his Fifth Amendment right not to testify. Pagliano was scheduled to appear before the committee and be deposed on September 10, 2015, but instead met behind closed doors with committee members for about twenty minutes. Afterward, ranking member Elijah Cummings told reporters, “I don’t think he has any information about Benghazi,” according to a CBS News story at the time.
The following March, Pagliano and his legal team cut a deal with the Department of Justice so he could cooperate with the FBI in return for immunity from prosecution in any criminal investigation into Clinton’s potential mishandling of classified information. His lawyers tried and succeeded in keeping the details of the immunity agreement private.
We subpoenaed Pagliano to testify before the OGR hearing on “Examining Preservation of State Department Records” that I chaired on September 13, 2016. Now, even though he had already talked to the FBI, and despite his immunity deal with the DOJ, Pagliano wouldn’t talk to us. In fact, he just plain did not show up! The appointed hour, 10 a.m., came and went. No Pagliano. His lawyers said he was pleading the Fifth.
In my opening statement before the hearing, I said, “I take my responsibility as a committee chairman seriously, especially the decision to issue a subpoena. It’s a serious matter. Mr. Pagliano has chosen to evade a subpoena, duly issued by the committee of the United States House of Representatives. I will consult with counsel and my colleagues to consider a full range of options available to address Mr. Pagliano’s failure to appear.” Minutes later, to Elijah Cummings I added, “This is not an optional activity. You don’t just get to say, hey, well, you know, I decided not to do that. . . . If anybody is under any illusion that I’m going to let go of this and just let it sail off into the sunset, they are very ill-advised.”
We issued a second subpoena for Pagliano to appear on September 22. This time we had the U.S. marshals serve it. Once more he was a no-show. So we passed a resolution that found Pagliano in contempt of Congress. My Democrat colleagues would have the public believe that our purpose was to embarrass the Clinton campaign a few weeks before the presidential election on November 8. Not so. While they were focused on the politics of the moment, I wanted to underscore the fact that Pagliano’s refusal to honor the subpoena undermined the authority of Congress to provide oversight. “This committee cannot operate—it cannot perform its duty, nor can any committee of Congress—if its subpoenas are ignored,” I said at the time.
In fact, I felt so strongly about the matter that on February 16, 2017, I sent a letter to President Donald Trump’s attorney general, Jeff Sessions, asking for Bryan Pagliano to be prosecuted for failing to appear before Congress. In the letter, I reiterated my point that “[i]f left unaddressed, Pagliano’s conduct in ignoring a lawful congressional subpoena could gravely impair Congress’s ability to exercise its core constitutional authorities of oversight and legislation.” Despite my request that Pagliano be brought before a grand jury or for him to be charged with violation of U.S. Civil Code 192, a misdemeanor that would have seen him fined a maximum of one thousand dollars and jailed for up to a year, no charges were brought.
As I said many times on Fox News throughout spring and summer of 2018, I believed Attorney General Jeff Sessions should resign. He is a decent man, but he is just not strong and determined enough to combat the forces trying to destroy President Trump.
The problem with this incident is that it set a precedent. In fact, in March 2018 I saw several YouTube and other online references claiming that former Trump aide Sam Nunberg would refuse to cooperate with Special Counsel Robert Mueller in his investigation into Russian interference in the 2016 presidential election, just “like Bryan Pagliano during the Clinton FBI email probe.”
The fact that Pagliano suffered no consequences for his intransigence underscores how little regard bureaucrats have for a congressional subpoena.
The Deep State has developed several other ways to subvert justice when it comes to subpoenas. One is to send someone to testify who doesn’t know the answers. Another is to send someone to testify who is thoroughly schooled in the art of evading the question.
Now, within the executive branch of the federal government—the president’s branch—is a department known as the Office of Management and Budget (OMB). Its mission is to “serve[s] the President of the United States in overseeing the implementation of his vision across the Executive Branch.” That also means it oversees federal agencies.
OMB happens to be the clearinghouse for witness testimony, too, it turns out. They practice with people we subpoena, teaching them and coaching them on their testimony. Think about it: OMB uses millions of taxpayer dollars to coach somebody on how to withhold the truth. It’s not like OMB is telling them to be honest, forthright, to tell it like it is. There is a legislative liaison whose job is to make things go away.
Told Not to Come
Take the case of Ronald Turk, for insta
nce. Turk was the associate deputy director and chief operating officer at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). We were looking into various ATF failures that ultimately led to the death of Immigration and Customs Enforcement (ICE) agent Jaime Zapata back in a 2011 shoot-out with the Mexican drug cartel, Los Zetas. It seems that the ATF had been tracking two potential weapons traffickers at various Texas gun shows and pawnshops and had an opportunity to seize the firearms they purchased and arrest the wrongdoers. But they didn’t do so. Those guns killed Zapata.
We held a hearing on March 9, 2017, and Ronald Turk had been subpoenaed to testify. Like Pagliano, he never showed up. A month later, on April 4, we held another hearing. This time the subject was the use of confidential informants at ATF and DEA. Turk was scheduled to appear here and did. I asked him why he neglected to come to the previous hearing.
Turk started off claiming, “We had about, I want to say eight days’ notice with that hearing. Right out of the box, we were advised by the Department of Justice that they thought there were certain, for lack of a better word, etiquette rules from past committees . . . for things like fourteen-day rules.” Well, there is no such thing as a fourteen-day rule and never was. We don’t have to give you two weeks to prepare for your congressional appearance.
Then he tried to convince me that he thought accepting an invitation to testify before Congress was nonobligatory. He said he had discussed it with the Department of Justice, which gave him and another ATF official “guidance” that they did not need to come before our committee and answer questions.
I started by taking the opportunity to set him straight, saying, “Listen, we appreciate you being here today. I appreciate what you do for this country. But attending a congressional hearing is not an optional activity. . . . And for you to . . . unilaterally just kind of collectively say, well, two of our people aren’t going to show up . . . come on, that doesn’t happen in any other setting. And you should be ashamed of yourself for that.”
Mr. Turk took offense. We went back and forth for a few minutes.
Turk: Well, sir, I would say . . . you’re questioning my honor now.
Chaffetz: Yeah, I am.
Turk: I don’t appreciate that.
Chaffetz: You were invited to come. . . .
Turk: I was following guidance. I’m a good soldier. I was following orders.
By this time, after years of investigating the ATF’s gun-walking schemes, I recognized this tactic. Now that I had Turk before me, I decided to find out names.
“Who told you not to come?” I demanded to know.
Turk responded: “The Department of Justice.”
That sure wasn’t a good enough answer. “Who? I want to know a name,” I countered.
“There’s so many names I could probably list off eight names between the—”
I cut him off. “Good,” I said. “Start. Give me one.”
I was determined to find out who was behind the obfuscation.
“Who all was this discussed with?”
He stalled, trying to decide if I meant I really wanted to know whom he talked to.
“Yes,” I clarified. “Who told you not to come? Start naming them.”
“Sir, are you suggesting I shouldn’t follow . . . guidance from the Department of Justice?”
“I want to know who’s giving you that guidance. You told me there were at least eight [people], and that you could name more, so give me one and then we’ll start with number two.”
Turk finally gave a name. “Sure,” he said. “Mr. Ramer. He’s the head of the Office of Legislative Affairs.”
Finally! A head from the Deep State had popped up in the middle of a congressional hearing. This one happened to be Sam Ramer, the acting assistant attorney general for the DOJ’s Office of Legislative Affairs. I kept at it until Turk gave me about four more names and then promised to get me the final three. But he was not happy about it.
“Sir, I came here as a good, honorable person and you, you admitted that you challenged my honor. I do not appreciate that. I operated in good faith—” he began. I had to interrupt him. “Operated in good faith?” I said. “You didn’t show up!” The exchange got a little more heated.
Turk: Sir, I was told that it was an invitation as [ATF] director [Thomas] Brandon explained. I did not know that that was not optional. . . . I would have happily gone against Department of Justice guidelines and been here that day. . . . Everyone I’ve ever talked to about this understands precisely what happened that day. Yet you want to get your fifteen seconds of YouTube minute time to challenge my honor.
A YouTube minute? I don’t think so.
Chaffetz: I’m not here to disparage your entire career based on one incident. I’m here to say that that one incident was a really, really bad decision. And we’re tired of people saying, well, I’ll brief staff or I’ll talk to you privately, when we’re trying to do it in the open light of day. We have very valuable time and lots of important things to deal with here. That’s why when you are invited to Congress you’re expected to show up. . . . And for you to suggest that as the chairman of the committee I’m just here to get a YouTube moment . . . are you kidding me?
Turk: Sir, I can assure you in the future—
Chaffetz: You don’t think . . . that [what] we’re trying to do on these . . . cases is a value to the American people? When you hide information . . . you don’t provide it to the United States Congress . . . and we can’t get the answers to the questions that we have. There’s a reason why I do have to issue subpoenas. And these two agencies, DEA and ATF, I love the men and women who do this. But the management I got a serious problem with. . . . That’s why we’re doing these types of hearings—is because you do need to be held accountable. And when you’re invited to Congress you don’t sit around and have a group and say, well, it’s probably in our best interest not to show up. We act in the best interest of the American people and you don’t respect that. That’s why you didn’t show up.
Turk: Sir, I do respect that tremendously. I can assure you that in the future regardless of what guidance I’m given from the Department of Justice I will be very responsive to this committee. I can guarantee you that.
It’s Never About Your Name in a Headline
We may have forced one member of the Deep State to give up his secrets, but there are so many more. To cut through all the red tape, blockades, and impediments various governmental agencies flung in our way, we have had to develop a few different strategies.
It wasn’t always necessary to convene a congressional hearing to get the information we needed. Sometimes we just needed to interview a cooperating witness under oath. On other occasions we had friendly witnesses who asked to be subpoenaed to give them cover with their boss. I obviously can’t share those names. But they could tell their boss they had no choice, they had to tell us. They were very grateful for the cover of a subpoena. It was an effective tool.
We could also talk directly to a witness. I remember, after James Comey announced he wasn’t going to prosecute Hillary Clinton over her emails in July 2016, I was able to get him on the phone that same day. Our conversation went something like this:
Chaffetz: We need you to come up to the Hill and testify.
Comey: Yes. I understand.
Chaffetz: Would you like me to issue a subpoena—would that help you?
Comey: No, no, I’m happy to come up. In fact, don’t issue a subpoena. I would really rather you didn’t.
So, we didn’t. I asked which day was most convenient for him, he gave me a date, and that’s when we held it.
Comey knew he had to come up. He understood. I was very grateful and appreciative that he was so willing to give so much time to come up and answer our questions. On some of the most important questions he was very elusive, though. In retrospect, he was not so candid. He is a professional at testifying. Those are the people the Deep State likes to send to hearings.
When you have $4 trillion flowi
ng out of the federal budget, there are a lot of incentives to be discreet . . . and secretive.
We have only seventy people on the staff of the OGR and there are two million federal employees. There is a lot we still haven’t uncovered. We can’t react to every newspaper story. We’re not just there to chase headlines.
The OGR has a whistleblower hotline that generates twenty to fifty calls a day. Right on our home page is a big, bold headline that says BLOW THE WHISTLE. When you click on it you are requested, “Please use the form below to alert Chairman Gowdy to fraud and abuse in your agency or other organization.”
Many of the alerts we get come from frustrated employees mad at their boss over typical workplace activities. Every once in a while something comes across our desk that is much more serious. Those whistleblowers give us a road map to root out corruption, sexual harassment, and perilous or just plain criminal schemes.
Frankly, I have to say that these courageous women and men, who risk not only their livelihood but often their physical safety as well, were perhaps the most effective weapon we had in combating the Deep State. If it hadn’t been for ATF agent John Dodson, we might not have heard of Operation Fast and Furious. After repeated complaints to his agency’s Office of Professional Responsibility were ignored, Dodson went to Senator Charles Grassley and told him that American gun dealers were selling arms to Mexican drug cartels at the ATF’s request.
Dodson faced serious blowback from his agency after exposing the gun-walking scandal in 2011. While he is still an ATF agent as of this writing, he has been retaliated against, transferred, and marginalized, according to a 2017 story in the Daily Signal. Looking back six years later, he told investigative reporter Sharyl Attkisson on her syndicated program Full Measure that in going public, he “went from being an agent of the government . . . to an enemy of the state.”
The Deep State Page 13
