Did the Obama Administration Act Illegally to Fire a CNCS Inspector General?
by RUTH KING
May 9, 2011
First, a full disclosure: Gerald Walpin is a friend whom I greatly admire and respect.
On August 3, 2006, President George W. Bush nominated him as Inspector General (IG) of the Corporation for National and Community Services (CNCS), an office charged with conducting independent audits and investigations of the CNCS and its service programs which include AmeriCorps, Volunteeers in Service of America (VISTA) and Senior Corps. He was confirmed by the United States Senate on December 2006 and sworn into office in January 2007.
On June 11, 2009, President Obama, only five months into his term of office, announced that Gerald Walpin would be removed from office. Several legislators in both Houses protested and raised questions and challenges about the firing of Mr. Walpin whose position as Inspector General is supposed to be protected from interference by political appointees and the White House. Here hangs the tale that we hope Mr. Walpin will elucidate.
Gerald Walpin has had an illustrious career in Law and public service prior to his appointment in 2006. After attending City College and Yale Law School where he was Managing Editor of the Yale Law Journal (1954-1955) and graduated cum laude, he served as Law Secretary to two United States District Court judges. From 1957 to 1960, he served in the United States Air Force as Judge Advocate General with a rank of First Lieutenant.
From 1960 to 1965 Mr. Walpin was an Assistant U.S. Attorney and Chief of Special Prosecutions of the Office of United States Attorney the Southern District of New York, after which he entered private practice in New York City.
From 2002-2004, Gerald Walpin served as President of the Federal Bar Council, a bar association of attorneys that practice in the courts within the Second Circuit. He received the American Inns of Court award for outstanding professionalism as an attorney and for mentoring younger lawyers, presented by Supreme Court Justices Stephen G. Breyer and Ruth Ginsburg.
Most Americans, and I include myself, are not well informed on the role of Inspectors General, the rules for nomination and the terms of service, and their importance in almost all major government agencies including defense and homeland security. And, for the record…the plural is Inspectors General.
Ruth King: First, will you explain the work of an Inspector General and the rules regarding his tenure?
Gerald Walpin: Before assuming office, each IG for most of the important Government agencies (including CNCS) is nominated by the President and, after vetting by a Senate Committee, must be confirmed by the full Senate. Because Congress believed it crucial that IGs be independent of political pressure, the Presidentially-appointed IG has no fixed term, and may not be removed unless for cause, explained to both Houses of Congress. The IG is responsible for uncovering fraud, waste, abuse, and mismanagement in the agency and by grantees and contractors who receive federal funds through the agency. To perform this work, the IG has a staff of Special Agents and Auditors, who investigate meaningful "tips" received from "whistle-blowers" and perform periodic audits of grantees. While the IG is appointed by the President, the IG's staff is almost entirely professional long-time Civil Servants without political relationships, whose only motivation is honestly to uncover any wrongs. In 2008, Congress, believing that IGs' independence was not sufficiently protected, amended the IG Act to provide that no IG could be removed or transferred without 30 days advance notice to Congress together with the reason the President has taken such action.
RK:Do all major government agencies have Inspectors General, including those such as Homeland Security and the Defense Department?
RK: Many press accounts stated that your probe of misuse of AmeriCorps funds by a close friend and supporter of President Obama led to your termination. Will you elucidate?
GW: That is the only conclusion that can rationally be drawn from the facts. During the first two years of my service as IG, I had received many commendations for my service, including from CNCS management. In 2008, my staff (dedicated Civil Servants) gave me a report that carefully established that one Kevin Johnson had misused for personal purposes an $850,000 AmeriCorps grant (using it for such purposes as padding his non-AmeriCorps staff salaries, meddling politically in a school-board election, and having AmeriCorps members perform such personal services as washing his car and chauffeuring him), when the money had been granted for tutoring Sacramento-area students, the redevelopment of several inner-city buildings, and theater and art programs.
My Staff's report recommended that criminal action, and civil action to recover the money, be commenced against Johnson and his assistant. Thus, I had two alternatives: accept and support the recommendation of my non-political staff by endorsing and presenting the report to the U.S. Attorney in Sacramento, California (where Johnson had received and was supposed to use the grant for AmeriCorps purposes), or kill the report. Of course, given the factually-supported report, I elected to support my Staff and therefore submitted the report to the U.S. Attorney's Office as the Report and Recommendation from my Office. The U.S. Attorney's Office informed me, after studying the Report, that it was an excellent Report that clearly established Johnson's civil liability; as to criminal charges, which require proof of Johnson's personal knowledge and intentional participation in the misuse, more investigation would be needed. Convening a grand jury to investigate fully all evidence is normal preceding a criminal case, and I agreed. Further support for the merits of our charges against Johnson came when the CNCS Hearing Officer, after considering the evidence presented by my Staff, ordered that, to protect Government funds, Johnson be suspended from the ability to receive any further federal funds.
Before the grand jury could be convened, Johnson was elected Mayor of Sacramento, and, I then learned for the first time, was a good friend and supporter of Obama, who, as we know was elected President in November. Suddenly then, the Acting U.S. Attorney (who I later learned was lobbying Obama to be appointed as U.S. Attorney), started pressuring me to agree to settle the case without imposing either criminal or civil liability on Johnson. I refused to agree, noting that Johnson had never meaningfully disputed any of the facts in our Report. The Acting U.S. Attorney, together with CNCS Management which had also been subject to pressure to drop the case against Johnson, went behind my back and entered into the settlement that absolved Johnson of any liability.
Because this settlement resulted in waste of government funds and a an abuse of responsibility, I and my Staff filed a Report with Congress -- pursuant to statutory responsibility to do so -- critical of the settlement, setting forth all relevant facts. Before I submitted that Report to Congress, I candidly advised both the Acting U.S. Attorney and CNCS Management that I would be doing so. Obviously following the axiom that an offense is the best defense, the Acting U.S. Attorney, in coordination with CNCS management, filed a complaint against me with the Integrity Committee of the Council of Inspectors General on Integrity and Efficiency ("Integrity Committee"), the body created by Congress to receive and determine the merits of all complaints against IGs. Without awaiting the Integrity Committee's decision on the complaint -- and ignoring this Country's time-honored rule that a complaint is not established merely because someone makes allegations, as anyone can make a false accusation -- the White House called me on my cell phone when CNCS management knew I was driving out-of-town to a meeting. I was told that I had one hour to resign or be fired. My request for more time to make that decision was rejected. When I declined to allow this mistreatment of an IG -- a bad precedent for all IGs -- to be swept under the rug by providing my resignation, I was informed that I was immediately terminated from my position and barred from my Office, and transferred to administrative leave status for a 30-day period. No advance notice was provided to Congress as required by statute; indeed, the first notice to Congress was given only the day after I was told that I was removed.
Significantly, four months later, after the Integrity Committee had investigated the facts of the complaint against me -- on which the White House, almost a week after it had removed me, announced that it rested its decision to remove me -- the Integrity Committee issued a report absolving me of any wrongdoing. Given this finding and the chronology of events -- from the commendation of my work through the objection to my Office's refusal to bow to pressure to bury the case against Johnson -- the only rational conclusion is that I was fired because of that.
RK: It is my understanding that the way in which you were fired is a violation of the Inspectors General Reform Act which President Obama co-sponsored. Can you affirm that?
GW: As noted, Congress amended the IG Act in 2008 to require that notice be given to Congress at least 30 days in advance of the removal or transfer of an IG, together with the reason. This amendment was co-sponsored by then Senator Obama. The House Report in support of this change explained that it was "to enhance the independence of the Inspectors General." The Senate Report entitled its discussion of this amendment as "STRENGTHENING INDEPENDENCE" of IGs, and describes the purpose of this "advance notice provision" as "to enhance the Offices of the Inspector General," and as giving IGs "a useful deterrent against improper intimidation or dismissal." I, and many independent experts, concluded that, since I was removed, on June 10, 2009, from my Office, from my ability to perform my duties as IG, and even from contact with my Staff and my e-mails, and transferred to administrative leave status, without any prior notice to Congress -- and therefore without the 30-days advance notice before removal or transfer required by the statute -- the White House action violated the statute.
RK: President Obama advised Congress that he would remove you from office because he no longer had “the fullest confidence” in you as Inspector General. There were also efforts to describe you as "confused" and "disoriented" which elicited strong negative responses. Senator Grassley wrote this about you:
"Inspectors General have a statutory duty to report to Congress. Intimidation or retaliation against those who freely communicate their concerns to Members of the House and Senate cannot be tolerated. This is especially true when such concerns are as legitimate and meritorious as Mr. Walpin’s appear to be."
Could you address this and mention other legislators who came to your defense and challenged the administration?
GW: The sequence of "explanations" that the White House provided for the decision to remove me is telling. On the June 10th telephone call, the ONLY reason that I was given was that it was "time to move on." On June 11th, in giving the first notice to Congress, the President gave no reason; he merely stated what he "no longer" had "the fullest confidence in" me -- what is implicit in any removal by the President -- but not any reason he had supposedly lost confidence in me. Members of Congress immediately protested the President's failure to comply with the statute. For example, in addition to what you quote, Senator Grassley wrote to President Obama, asserting that the President was violating the very statute which the President, as a Senator, had co-sponsored which mandated the 30-day advance notice with reason, and stated that he was "deeply troubled to learn of the ultimatum given Inspector General Walpin absent Congressional notification." Senator Grassley continued that the public "cannot afford to have Inspector General independence threatened," and urged the President "to follow the letter of the law should you have cause to remove any Inspector General." He concluded by noting that, since serving as IG, Mr. Walpin "has identified millions of dollars in AmeriCorps funds either wasted outright or spent in violation of established guidelines. In other words, it appears he was doing his job." Congressman Darrell Issa similarly questioned the White House action and demanded "a full and complete explanation."
Other Congresspersons and Senators joined in questioning my removal. In response, the White House offered some supposed "specifics." First, it claimed that it was merely following the request for my removal from CNCS management, quoting some objections they made on my conduct; this is perhaps the most farcical of all: that the objection of a wrongdoer -- complicit in attempting to stonewall the investigation and cover-up Johnson's wrongdoing -- should cause the removal of the investigator pursuing the wrongdoing! And then the White House ended up relying on the complaint against me, without allowing the Integrity Committee to investigate and provide its conclusion on the merits of that complaint -- which, as already noted, the Integrity Committee concluded, after careful investigation, had no merit.
The only conclusion that can rationally be reached on the White House's removal of me is that it had no "reason" other than that it did not want to allow a dedicated IG to continue to support his Staff in the excellent work it had done to pursue a well-documented case against one who was a political supporter and friend of the President. As one of the TV interviewers said after interviewing me, my agility in answering questions had to prove to the public how wrong the White House was -- and how dirty it was in attempting to smear me -- in reporting the supposed statement by some in CNCS management that I had been "confused, disoriented, unable to answer questions." Although not needed, the United States Court of Appeals for the Second Circuit effectively confirmed the falsity of the White House "reason," by appointing me, in 2010, to the Court's 10-person Committee on Admissions and grievances, with the responsibility to investigate allegations of unprofessional or illegal attorney conduct.
RK: There were also post firing efforts to air-brush the story by Administration officials, and a stonewall of an impartial Congressional hearing and spurious allegations of “racial and gender” insensitivity” Can you comment?
GW: Senator Grassley and Congressman Issa made many demands of the White House, CNCS, and the Acting U.S. Attorney in Sacramento for relevant documents. Although they acted independently of me, I learned, as they announced publicly, that they were stonewalled in being denied material requested documents and information. I understand that Senator Grassley was so frustrated by the White House barrier against full disclosure that he put a "stop," for as long as permissible under Senator rules, on the White House nomination of Norman Eisen (the White House representative who had called and fired me on June 10th) to be an Ambassador.
As to the "racial and gender" insensitivity charge: that was so frivolous and so belated a charge against me that it strongly suggests that the White House recognized its position was so ridiculous that it went fishing for any smear to throw at me. The gender assertion was based on a special "newsletter" authored by the long-time (long before my arrival) IG office person responsible for public relations, as a humorous retirement item he distributed to all members of the Staff at a going-away luncheon for the Assistant IG responsible for procurement. Among the many "articles" in the "newsletter" was one that contained a humorous notation of the then news of Eliot Spitzer's procurement of prostitutes in Washington. How that is a gender insensitivity charge against me is beyond belief. Moreover, when it was distributed to the Staff (at least half being women) at the luncheon, the author was congratulated by all and no one raised any question about its propriety -- including the honoree-retiree who was herself a woman and who, in her talk, thanked the author for the "newsletter."
The "racial" assertion is likewise incredible. It arises out of my support of the recommendation by my Assistant IG for Audit that one of her auditors should be removed for wrongdoing. That the auditor recommended for removal was black was entirely irrelevant. Indeed, at least one-half of her auditors were minority and the subject-auditor had been hired by that same Assistant IG only about a year before. The recommendation for firing was based on clear and convincing evidence that, during her work time at the IG Office and using IG equipment, she was impermissibly working on her separate profit-making position as a real estate broker. After hearing all the evidence, including all explanations provided by the employee and her attorney, I concluded that my Assistant IG's recommendation was correct, and endorsed the firing. How that amounts to "racial insensitivity" was never meaningfully explained.
RK: You had referred the matter of AmeriCorps and Johnson to the local U.S. Attorney’s office. What happened?
GW: As noted above, initially the Acting U.S. Attorney applauded our Report and Referral for civil and criminal prosecution. After President Obama's accession to the Presidency, however, as we later learned, political and media pressure was placed on him to terminate the attempt to hold Johnson liable. The local newspaper wrote editorials. The local Congresswoman lobbied him. At the same time, the Acting U.S. Attorney was seeking local political support for his request to the White House that he be nominated by the President to become the U.S. Attorney. As already noted, the Acting U.S. Attorney sought my agreement to a settlement that immunized Johnson from any liability. When I refused, he went behind my back, obtained the assistance of CNCS management which itself had been lobbied with political pressure, and entered into a settlement that imposed monetary liability only on the nominal entity that Johnson had used to receive control over the grant funds, with no liability imposed on Johnson.
This was clearly a ersatz settlement in that, as we showed to the Acting U.S. Attorney and CNCS, the entity was totally insolvent; thus without a guaranty from Johnson personally, which was not required, despite my specific request that it be obtained, no assurance was received that the money would ever be paid back to CNCS. Because these facts embarrassed the Acting U.S. Attorney and CNCS, they responded by filing the spurious complaint against me, subsequently found to be meritless by the Integrity Committee, the entity to which Congress assigned the responsibility of determining the merits of all complaints against IGs.
RK: Tell us about your lawsuit please. Will you appeal?
GW: I sought an order, from the U.S. District Court in Washington D.C., directing my reinstatement as IG, as I had been removed and transferred without 30 days advance notice to Congress with the reason, as the statute mandated. This type of judicial remedy had been held to be appropriate by the Supreme Court: As early as 1803, the Supreme Court declared: "if the officer is by law not removable at the will of the President, the rights he has acquired are protected by the law, and ... cannot be extinguished by executive authority, and he has the privilege of asserting them ...." And as recently as 1996, the Court of Appeals for the District of Columbia had ruled that such an order is properly issued when a newly inaugurated President acts to remove his predecessor's appointee in contravention of a statutory "duty to comply with removal restrictions."
Unfortunately, the District Court that heard my case ignored the reality of my firing by deciding that the President had not removed or transferred me, but had merely put me on administrative leave, even though that immediately removed me from my position and responsibilities as IG, and transferred me to administrative leave status. My appeal to the Court of Appeals was denied on the same ground -- essentially an unwillingness of the Judiciary to do battle with Executive prerogatives. I lost, but, as many people I respect (both Republicans and Democrats) have told me, I fought this battle for the principled reason not to buckle under to improper political pressure interfering with objective non-partisan law enforcement.
I certainly didn't bring the lawsuit because I needed the position for the low salary in comparison to the compensation that I had received in my law practice before I accepted President Bush's call to service. My lawsuit has had the benefit of enhancing IGs' independence by making clear that, while I lost the case, the embarrassment that the White House experienced in its removal of me must make it less likely that it will attempt another such removal.
RK: Tell us about the book you are writing.
GW: A discussion of how five Justices -- a bare majority of the nine Justices on the Supreme Court -- have ignored the words of the Constitution, the intent of the framers, and earlier Supreme Court decisions, in favor of their personal views of what the law should be. In doing so, this slim majority of Justices in the recent five decades has usurped the responsibilities of the legislatures and voided statutes and policies solely because these five Justices disagreed with them, even though those policies were in existence when the Constitution was adopted, were supported by legislatures and public opinion, and no provision of the Constitution as written, as intended by the framers, or as previously interpreted by the Supreme Court, voids the statutes.
My book will describe, hopefully in terms understandable to non-lawyers, how the Supreme Court has itself thus violated the Constitution and adversely affected the life, safety, property and happiness of the American public.
RK: Thank you Gerald Walpin for taking the time to answer these questions.