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Blog Post | October 31, 2022

A Crisis Of (Un)Accountability: Amidst Profound Political Cruelty, Ethics Matter More Than Ever

Congressional OversightDepartment of Homeland SecurityDepartment of JusticeEthics in Government
A Crisis Of (Un)Accountability: Amidst Profound Political Cruelty, Ethics Matter More Than Ever

The news was flooded in September with images, reports, and increasingly abhorrent context for Florida Governor Ron DeSantis’ trafficking of migrants from Texas to Martha’s Vineyard as a political stunt. DeSantis’ actions, and those of his aides, are of course potentially illegal, as was asserted by a Texas sheriff who opened a criminal investigation into the spectacle. This latest sadistic political posturing came at the cost of real people fleeing real persecution, but there is also a crucial piece of this awful puzzle that hasn’t been fully explored. Why did Department of Homeland Security (DHS) agents, funded by federal dollars, allegedly forge documents for migrants knowing (even if the migrants themselves didn’t) that their flights were not destined for the locales DHS agents made their immigration proceedings beholden to?

Rachel Self, an attorney from Martha’s Vineyard, essentially claimed in an emotional interview on the day the migrants arrived that these agents forged fraudulent migrant addresses. Why? These federal employees are basically alleged to have committed forgery in a deliberate attempt to ensure that the migrants — despite their best efforts — couldn’t comply with federal immigration policy. While shocking in its vileness, DHS’ alleged abuse of process and policy against this nation’s most vulnerable is not itself novel. In truth, DHS (and much of our nation’s federal accountability framework) is dysfunctional, and rotten to its core. 

In September, the House Committee on Homeland Security sent a letter addressed to Attorney General Merrick Garland and Department of Homeland Security Secretary Alejandro Mayorkas. In it, Committee Chairman Bennie Thompson (D-MS) asked Garland to investigate if any federal laws were broken in the commission of this stunt and asked Mayorkas to conduct an investigation into DHS’ involvement in the trafficking enterprise. 

This request was and is important, and any congressional request for investigation should merit serious and tangible response from both the Department of Justice (DOJ) and DHS. The reality is that both DHS and DOJ are failing in their responsibilities to the public and in their basic commitments to ethics and transparency. As a result, the onus now falls to Congress to hold federal institutions accountable to the people they are supposed to serve.

The DOJ is Failing Its Accountability Mandate 

It has been almost a month since Rep. Thompson issued his letter calling on the DOJ to conduct an investigation, yet neither the DOJ nor Garland himself have responded publicly to the letter or the calls it amplified.

Throughout his tenure in Biden’s cabinet, Garland has made clear his sensitivity to even the most bad-faith accusations of partisanship and politicization. This sensitivity has led him to be overly cautious in his investigations into potentially criminal wrongdoing by partisan actors, even and especially when perpetrated by Donald Trump, members of his administration, and other Republicans. This failure constitutes a gross abrogation of his responsibility as the nation’s top prosecutor. 

In fearing even the appearance of partisanship — an accusation that is and will be wielded in hearty bad-faith against him no matter what he does — Garland has effectively established a system of justice that insulates one political party and its operatives from federal law. This partisan political shield is of course enshrined in the fact that Garland let the statute of limitations expire earlier this year on Trump’s 10 potential crimes as outlined by the Mueller investigation with nary a word of explanation. As our Eleanor Eagan said about Garland in 2021, and which remains relevant now, “the law is not an immutable beast. It is inherently political, and [Garland] is a political figure now. He is accountable to the public and to the president that the public elected. It’s time he started acting like it.”

While, admittedly, Garland’s DOJ is finally making headway into investigation of Trump’s potentially illegal treatment of protected records, his pattern of blind-eye faux neutrality (that is really just acquiescence to ultra right-wing wrongdoing) seems unlikely to suddenly change any time soon. As a result, Congress has no reason to believe that the DOJ will investigate DeSantis’ actions or those of implicated DHS agents, which represents yet another part of government that the DOJ has historically failed to hold accountable. 

DHS Can’t Be Trusted to Hold Itself Accountable

Of course, DHS also cannot be trusted with an investigation into itself. Should DHS conduct an internal investigation, it would do so through its Office of the Inspector General (OIG). OIGs are a crucial part of good government and are intended to be paragons of transparency and ethics that are uniquely qualified to investigate such issues. 

Such is not the case at Homeland’s OIG. DHS Inspector General Joseph Cuffari, in case you forgot, is still a Trumpian hack who has already potentially interfered in and actively obfuscated at least one major investigation. When Secret Service agents appeared to have destroyed records of their activities and communications during the invasion of the U.S. Capitol on January 6th, Cuffari not only failed to do anything about these clear violations of federal records law but  seems to himself have interfered in Congress’ record collection and ongoing investigation into the subject. 

As if that weren’t enough, Cuffari has also at various times been accused of removing information from DHS OIG reports, failing to act on internal reports of widespread sexual harassment, and otherwise forcing Homeland’s internal watchdog into near dormancy. Members of Cuffari’s own staff have even petitioned for his removal as a result of his profound mismanagement of the department, apparent abuse of his authority, and near sabotage of its career staff.

Biden still has yet to remove Cuffari from his office, something that is well within his presidential powers, despite the overwhelming nature of the case against the inspector general. He finally should.

In the meantime, the products of Cuffari’s leadership and department cannot be trusted, and Congress must accept its responsibility to hold accountable the newest and third largest federal agency. To leave the agency entirely without oversight must not be an option, and this latest example of egregious wrongdoing is hardly a first in the department’s history. DHS agents within Customs and Border Patrol, for example, have previously been accused of deliberately misleading migrants by tricking them — or in some cases, forcing them — to break the law. In so doing, agents preemptively sabotaged migrants’ claims to asylum or even the possibility of fair treatment under the strictures of the American immigration system. Of course, CBP agents are also regarded as some of the nation’s least accountable, and most violent, law enforcement officers. Encounters involving CBP at the border have, on multiple occasions, resulted in the deaths of migrants and the deaths of civilians too. The list goes on.

With DHS increasingly setting its sights, and turning its broad ranging surveillance technologies, towards American citizens, legitimate oversight of the agency is evermore crucial. As a result, the nearly 100 congressional committees and subcommittees that assert oversight of the department must finally step up to provide just that. 

When Government Fails In Ethics and Transparency, Responsibility Falls To Congress

The one agency that has done exactly what it should in pursuing accountability is the Treasury Department. Treasury has now opened its own investigation into whether DeSantis improperly used federal COVID-19 relief funds to finance his Martha’s Vineyard stunt. The move must be applauded. However, with the DOJ and so-called “Meek Merrick” apparently unwilling to enforce federal law, and DHS’ corrupt Cuffari demonstrably unable to be trusted to competently conduct investigations, the responsibility is left to Congress to do more. 

Congress has immense power to motivate, collect, and publicize crucial information about the goings on of the federal government and represents a rare opportunity to provide inquiry and answers to constituents. From committee subpoena authorities to the simple conduction of public hearings on matters of salience, congressional committees provide a powerful platform on which to publicly perform the rigors of accountability. Congressional activities have historically led to the resignation of big bank CEOs, fundamentally changed the national narrative around Big Tobacco, and exposed mass surveillance projects and other improprieties being perpetrated by the CIA and NSA, among other achievements.

Congressional committee investigations, and their staging, can also powerfully influence federal agencies (and even the most cowardly of government agents) to do their jobs in holding corporations, politicians, and government officials accountable for their actions when they run counter to the law. The House Select Committee on the January 6th Attack on the United States Capitol is a key example of this. The committee has structured much of its presentation of evidence in order to specifically woo Merrick Garland to indict Donald Trump for his role in the insurrection. It may very well succeed. 

Most Americans don’t trust the government, with majorities viewing it as corrupt and nebulously bureaucratic. When done right, congressional oversight offers an opportunity to combat this pervasive distrust. 

DeSantis and DHS’ gross disregard for human life, and apparently equal disregard for federal law, merit at minimum investigation. The federal and political agents involved in this cruel stunt must be held accountable for the villainy they’ve perpetrated and for any laws that they circumvented. Congress has an opportunity to do just that where so much of the federal government’s investigative apparatus has failed and is failing. It must. 


Congressional OversightDepartment of Homeland SecurityDepartment of JusticeEthics in Government

More articles by Toni Aguilar Rosenthal

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