House Intelligence Committee Subpoenas Department of Homeland Security for Documents and Open Hearing with Acting I&A Head
Washington, September 29, 2020
Washington, DC – Today, Rep. Adam Schiff (D-CA), the Chairman of the House Permanent Select Committee on Intelligence, sent a letter to Joseph B. Maher, the Senior Official Performing the Duties of the Under Secretary for Intelligence and Analysis (I&A) informing the Department of Homeland Security (DHS) that the Committee would be issuing two subpoenas for documents and testimony after unnecessary delay and obstruction by the Department.
The Committee is issuing a subpoena to compel production by Tuesday, October 6, 2020 of outstanding documents, communications, and other records pertaining to the Committee’s ongoing investigation. The Committee is also issuing a subpoena compelling Mr. Maher to appear in an open hearing on Friday, October 2, 2020 to testify under oath as to why DHS is preventing a lawful Intelligence Community whistleblower—the former head of an Intelligence Community element—from providing classified testimony to the Committee by delaying security clearances for his attorneys, to explain why I&A has failed to produce requested documents to the Committee, and to answer questions about Mr. Maher’s own knowledge of and involvement the matters under investigation.
After issuing the subpoenas, Chairman Schiff released the following statement:
“The Committee has an obligation to independently investigate and substantiate serious allegations against senior Department of Homeland Security and White House officials. These allegations include the suppression of intelligence reports about Russia’s election interference and efforts to modify intelligence assessments to match Trump’s rhetoric on white supremacy, Antifa, and terrorism threats at the border. Unfortunately, the Department has unlawfully obstructed the Committee’s investigation by refusing to produce numerous documents related to the allegations in the whistleblower complaint and related to its activities in Portland. It has even taken the unprecedented step of slow walking security clearances for counsel to the whistleblower—the former acting head of an IC element.
“After weeks, and in some cases months, of attempted accommodation with the Department, we were left with no choice but to issue two subpoenas today. First, we require the Department to produce all responsive documents and other information the Committee has requested. Second, because of the Department’s unlawful obstruction, we require the head of the Office of Intelligence and Analysis, Jospeh Maher, to appear before the Committee this Friday to testify under oath about why the Department is not meeting its legal obligations to comply. Mr. Maher will also be required to answer questions about his own knowledge and involvement in matters under investigation. We are prepared to issue additional subpoenas for additional documents and testimony that the Committee requires to complete its investigation.
“Simply put, the Committee will no longer tolerate the obstruction and attempts to run out the clock by the Department.”
On August 3, 2020, the Committee launched an investigation into I&A’s activities, including its actions in Portland and involvement in the Administration’s response to protests nationwide, and requested a series of documents, including finished intelligence and raw intelligence reports. On August 19, 2020, following a limited production of documents by DHS, the Committee officially requested additional documents, and interviews with senior officials.
On September 9, the Committee released Mr. Murphy’s complaint to the DHS Inspector General, which alleges serious wrongdoing by officials at the Department and reprisal for making protected disclosures, Mr. Murphy then filed a supplemental clarification to his complaint, which can be found here. The complaint depicts a sustained and disturbing pattern of misconduct by senior Trump Administration officials within the White House and DHS relating to the activities of DHS’s I&A—an element of the U.S. Intelligence Community where Mr. Murphy previously served as Principal Deputy Under Secretary and Acting Under Secretary, until he was abruptly reassigned to DHS’s Management Directorate in August of this year.
The Committee conducted its first scheduled interview on September 10 and has conducted two additional interviews since, and the Department has produced additional, although limited, documents to the Committee. On September 18, the Committee requested additional documents and informed the Department it would schedule more interviews. On September 23, the Committee informed the Department it would resort to compulsory process and schedule an open hearing with Mr. Maher this week if DHS did not turn over documents and provide appropriate temporary security clearances for the counsel of a committee witness to allow for his deposition this week.
Dear Mr. Maher:
In my September 23, 2020 letter, I made clear that the House Permanent Select Committee on Intelligence (“Committee”) would be prepared to resort to compulsory process if (1) the element of the Intelligence Community that you lead, the Department of Homeland Security’s (“Department” or “DHS”) Office of Intelligence and Analysis (“I&A”), failed to produce records requested by the Committee in connection with its ongoing investigation of I&A; and (2) DHS failed to authorize appropriate security clearances for attorneys of Mr. Brian Murphy before his rescheduled deposition on Friday, September 25, 2020. Much to our disappointment, the Department has yet to authorize the clearances and, as a result, the Committee had to yet again postpone the deposition.
Nonetheless, in subsequent Committee communication and correspondence with the Department and I&A, the Committee offered a good faith extension until Monday, September 28, 2020, to resolve both outstanding matters. Specifically, the Committee agreed to withhold a subpoena duces tecum if I&A identified with specificity which documents it would produce voluntarily and commit to producing those documents on or before October 1, 2020. In addition, the Committee—as an accommodation—agreed to withhold a testimonial subpoena to you if DHS issued a temporary security clearance for at least one of Mr. Murphy’s attorneys, thereby allowing the Committee to take Mr. Murphy’s long delayed deposition this week.
Despite the extension, DHS honored neither of the Committee’s requests. As a result, the Committee has no choice but to resort to compulsory process.
As I stressed in my September 18 and 23 letters, the Committee has a responsibility to independently investigate and substantiate Mr. Murphy’s serious allegations, and you and your office have a legal obligation to comply. The allegations, as the Committee has underscored repeatedly, fall squarely within the Committee’s legislative jurisdiction and strike at the heart of the Committee’s constitutional oversight responsibility.
Consistent with Rule 10 of the Committee’s Rules of Procedure for the 116th Congress, the Committee compels DHS to produce by Tuesday, October 6, 2020, all documents, communications, and other records specified in the attached subpoena schedule.
In addition, the Committee also compels your appearance at a hearing of the Committee at 10:00 A.M. on Friday, October 2, 2020, in the Capitol Visitors Center (CVC) Auditorium. You will be required to testify under oath as to why DHS is preventing a lawful Intelligence Community whistleblower—your own predecessor—from providing classified testimony to the Committee by delaying security clearances for his attorneys. You will also be required to testify about documents within I&A’s possession, custody, and control, which I&A has yet to produce to the Committee, as well as your own knowledge of the matters under investigation. If deemed necessary to protect classified information, the Committee will hold, on the same day, a second round of questions in closed session in the Committee’s classified hearing room in HVC-304.
As a career civil servant, the Committee welcomes and expects your full and complete cooperation and testimony. In our democracy, all career civil servants take an oath of office to support and defend the Constitution, and are ultimately accountable in their work to the American people and to their elected representatives in Congress.