Prepared Statement of Senator Chuck Grassley
Ranking Member, Senate Committee on the Judiciary
Executive Business Meeting
On the Nomination of:
B. Todd Jones, to be Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives
Thursday, July 11, 2013
Mr. Chairman,
Before we take any action on any item on today’s agenda, I have a lot to say about the nomination of Mr. Jones to be Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives.
I objected to holding his hearing last month and requested the hearing be postponed. Both then and now, there remains an open complaint of whistleblower retaliation against Mr. Jones before the Office of Special Counsel.
I laid out my reasons before the hearing as well as in my statement at the hearing. It was outside of the regular Committee practice to move forward with the Jones’ hearing until the complaint filed with the Office of Special Counsel (OSC) was resolved.
Last week I renewed my objection to further consideration of the nomination. In particular, I requested that Mr. Jones not be listed on the agenda. I thought it was premature to proceed further while a staff investigation was underway, and with an open OSC complaint.
As I have said, when a nominee is the subject of an open investigation, the Committee generally does not move forward until the issues are resolved. Accordingly, I had hoped that the nominee would be held over again today, until the OSC complaint is closed, or until there is bipartisan agreement that no further investigation is warranted.
However, today, it appears the Majority is intent on reporting out the nomination, even though the issues are not resolved and despite the concerns we have expressed. So it seems, at least with this nomination, we are proceeding in a manner that indicates a pre-determined outcome and schedule rather than following the normal Committee process.
I am going to discuss the staff investigation into this matter because I’m quite concerned by the direction it has taken. And I am not sure that all members of the committee understand what has taken place. But before I do that, I will explain why a staff investigation was necessary in the first place.
Over the past few months, there has been correspondence between my office and the Office of Special Counsel regarding the status of their proceedings.
I had previously received a copy of an anonymous letter to the Office of Special Counsel making various allegations against Mr. Jones. I sent a letter to OSC on April 8, asking for an update on those allegations.
On April 12, OSC responded that there were two pending matters involving the US Attorney’s Office, District of Minnesota, where Mr. Jones is the United States Attorney.
The first matter was a prohibited personnel practice complaint alleging reprisal for whistleblowing and other protected activity. The complaint, filed by an Assistant United States Attorney in the office, alleged that personnel actions, including a suspension and a lowered performance appraisal, were taken in retaliation for protected whistleblowing or other protected activity.
The second matter was a whistleblower disclosure, alleging gross mismanagement and abuses of authority.
On June 5, OSC provided the Committee with an update to the two pending cases. It reported that the whistleblower disclosure case had been closed based on the information provided was insufficient to determine with a substantial likelihood that gross mismanagement, an abuse of authority, or a violation of a law, rule, or regulation had occurred.
OSC’s action to close the whistleblower disclosure case was not based on any investigation by that office. That action was merely a determination based on the complaint document itself.
The majority takes the position that they oppose and will not participate in what they view as our attempt to reopen a closed investigation. I contend that there was no investigation by OSC and that we must follow-up on corroborating evidence related to Jones’ behavior and qualifications.
Furthermore, the allegations raised in the disclosure complaint directly relate to the retaliation case. We have corroborating evidence and an adequate basis to follow-up on this issue and come to a conclusion. It is important to do so, not only to close that matter which is before the committee, but also to determine if Mr. Jones gave candid testimony to the committee. At present, I have doubts about that. I will elaborate on that later, if the committee wants to hear that presentation.
With regard to the prohibited personnel practice, I was informed that the complaint was referred for investigation. Subsequently the complainant and Justice Department agreed to mediation. I was told that if mediation was unsuccessful, the case would return to OSC’s Investigation and Prosecution Division for further investigation.
My colleagues should understand that, of all the complaints received by OSC, only about 10 percent of them meet that threshold. This case was one of them.
Why did the career, nonpartisan staff at OSC forward the case for investigation? Presumably because they thought it needed to be looked into. That says something about the likely merits of the case.
Contrary to OSC’s letter that the case was open, the Chairman reported to me that he had been notified by OSC that it had reached a resolution on the retaliation allegations against Mr. Jones and that the investigation was now closed.
Accordingly, I contacted the Special Counsel, inquiring as to her availability to testify to at least explain more fully the status of the complaints. Ms. Lerner replied “I am unavailable to testify tomorrow about this matter. Moreover, it would not be appropriate for me to provide any additional information about a pending case.” She also confirmed for the second time that the investigation remains open. She stated, “The reassignment of the case for mediation did not result in the matter being closed.”
So, on June 11, the Committee went forward with a hearing on the Jones nomination. We were told that Mr. Jones’ hearing needed to be held in order for him to have an opportunity to respond to the Office of Special Counsel complaints.
In advance of the hearing, the Department of Justice sent a letter to me stating: “Mr. Jones looks forward to answering your questions about these matters during his nominations hearing….”
Additionally, Mr. Jones was quoted in the Star Tribune as saying, "I am looking forward to meeting with the Committee and answering all their questions."
However, as I expected, the hearing provided no information to the committee with regard to the open OSC investigation. At the hearing, Mr. Jones said that he could not talk about the OSC complaint. This negated the whole reason given to us that the hearing had even been scheduled.
At his hearing, my first question to Mr. Jones was about the investigation. This is his reply:
“Senator, to answer your last question first, I am aware that the OSC has requested information from our office in the District of Minnesota. Because those complaints are confidential as a matter of law, I have not seen the substance of the complaints, nor can I comment on them. I have learned more from your statement today than I knew before I came here this morning about the nature and substance of the complaint.”
A few questions later, I inquired of Mr. Jones, “Will you answer the complaints about the Assistant U.S. Attorney --because that is why you are here today. How are we supposed to ask about these allegations if we cannot ask you?”
He replied –
“Well, quite frankly, Senator, I am at a disadvantage with the facts. There is a process in place. I have not seen the OSC complaint. I do know that our office, working with the Executive Office of U.S. Attorneys, is in the process of responding to the issues that you have talked about this morning, but I have not had the opportunity to either be interviewed or have any greater knowledge about what the OSC complaint is.”
So there we were, left with an open investigation of serious allegations of whistleblower retaliation. The Chairman said the hearing was the opportunity for us to question the nominee and get these questions answered, but the nominee was non-responsive.
This puts us in the position of either allowing time for the Office of Special Counsel to do its job, or we need to look into the matter ourselves before proceeding.
Late in the day before the hearing, we received from the Majority an offer to conduct some interviews the Friday following the hearing. That was quite perplexing to me. We are going to begin the investigation after the hearing is concluded. When has the Committee ever conducted an investigation AFTER the hearing for that nominee?
The day after the hearing, the Chairman’s staff indicated to the media that we were conducting a bipartisan probe. The media reported that the majority staff had offered to conduct a bipartisan inquiry into the matters before the Office of Special Counsel.
However, I am disappointed to report there was no genuine effort to gather all the facts. The majority only agreed to jointly interview one witness, the whistleblower himself. However, the majority refuses to look into the substance of the whistleblower’s claims.
More troubling, it is starting to look like some want to turn this inquiry into an investigation of the whistleblower, rather than get to the bottom of the complaint against the nominee.
The majority has apparently reached its own conclusion that this is not a whistleblower matter at all, but a personnel matter wherein management simply imposed discipline on a disruptive or insubordinate employee. However, there is no factual record before the committee to support this conclusion.
It is purported that DOJ has made a determination that there is no merit to the retaliation complaint but agreed to mediation to settle the case. However, the majority can provide no documentation from DOJ that this is the case.
The majority have determined that the whistleblower is an uncooperative witness for being “unwilling to provide documents” – meaning his personnel file.
This individual has been an exemplary public servant. He is an AUSA with 30 years of federal service, including 24 years as an AUSA in the District of Minnesota. He has extensive leadership experience and in 2012 received the Assistant Attorney General’s Distinguished Achievement Award. So it is quite alarming to me that the staff investigation of a whistleblower’s complaint would be twisted around into an apparent attempt to investigate the whistleblower.
I’ve worked with many federal government whistleblowers over the years and this is exactly the type of treatment that whistleblowers fear. It’s one of the main reasons they are afraid to come forward. This type of treatment raises serious concerns.
I have come to expect that out of the federal government agencies. I’ve seen it over and over again. But this sort of inquiry shouldn’t be the way the Committee deals with whistleblowers or others who come forward to testify.
Let me share with the Committee what we did learn from our limited investigation. It is enough to give me concern about Mr. Jones’ leadership ability and raise doubts about whether or not he should be promoted to head this office.
According to both that whistleblower and the former head of the FBI in Minnesota, the relationships with federal, state, and local authorities deteriorated under Jones’ leadership of the office. The problems primarily involved agencies who worked drug cases and violent crime.
Mr. Jones addressed the issue in a meeting with criminal prosecutors in his office. According to the whistleblower, Jones came to the whistleblower’s office and asked for his candid opinion of what could be done about the problem.
The whistleblower gave Jones his candid opinion and indicated that he would be sending further details in writing.
About two weeks later, he put in writing what he had told Jones in the meeting. His email to Jones included allegations of mismanagement by one of his supervisors, the head of the Narcotics and Violent Crime unit.
The very next day, that supervisor called the whistleblower on the carpet and, according to the whistleblower, interrogated him about his work in search of a pretext to discipline him.
Failing to find a substantive reason to discipline him, his supervisors then suspended him for five days for his demeanor in that meeting. Now, that looks like retaliation.
To be fair, this is just one side of the story, and questions remain unanswered. Did Jones tell the unit chief about the whistleblower’s allegation of mismanagement? Was his allegation of mismanagement a factor in the decision to suspend him?
We don’t know, because the Office of Special Counsel has not investigated the matter, and neither have we. But this fact remains – there is an open investigation on serious allegations of whistleblower retaliation. We don’t know the results of that investigation. The Committee obviously doesn’t have the full information about the nominee.
These are serious charges, and ones that are of particular concern to me. The public interest demands resolution of these issues. Members of the committee are entitled to know if these charges have merit. Members of the committee are entitled to a complete record.
Finally, I would like to highlight a few comments contained in a recent letter from the National Whistleblowers Center (NWC). That organization, since 1988, has been supporting whistleblowers.
They oppose a vote on this nomination “until there is a complete and thorough investigation into his treatment of employee-whistleblowers.” That is exactly what I have requested.
The NWC notes the OSC investigation remains open. Again I agree with their contention, namely, “that office should be able to complete its inquiry in due course, without any pressure triggered by the nomination process.”
I will place the letter in the record, which supports my position that the Committee should fully investigate the allegations prior to a vote.
I have previously placed in the record a letter from the White House which describes the Administration’s view of whistleblower protections. If this letter from the White House Counsel means anything, we ought not to move forward.
I quote from the letter:
“we wish to encourage such individuals to expose waste, fraud, and other improper behavior. The Administration has been steadfast in its commitment to that very principle and to ensuring that individuals who make lawful disclosures receive the legal protections they deserve. This Administration has also repeatedly made clear that it will not tolerate retaliation against lawful whistleblowers.”
Retaliation is precisely the allegation against Mr. Jones. The OSC process will ultimately decide that issue. Until then, the Administration policy demands that we wait for that resolution. To move forward otherwise, is a repudiation of that policy.
I do not believe we should simply rubberstamp this nomination, and sweep the alarming allegations under the rug. So I would hope that further action on the nomination be paused until these matters are closed.