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Tuesday, March 2, 2010

New Evidence In Walpin Firing Scandal, Supports Firing Was Politically Motivated

Just before Thanksgiving of this year,  a report was issued by Congressman Issa and Senator Grassley contending that the Obama White House was politically motivated when it fired AmeriCorps inspector general Gerald Walpin after his 2008 investigation of Kevin Johnson, friend of the Obamas, and now Sacramento's mayor. The report criticizes the White House ethics counsel for not examining what Walpin had been investigating at the time of his dismissal, including the allegations of sexual misconduct by Johnson and hush-money used to cover up the misconduct. The report asserted that Michelle Rhee, now Johnson's fiancee, made the payoffs.

The firing was preceded Walpin's aggressive investigation of the misuse of AmeriCorps dollars by Kevin Johnson, who was accused of misusing federal grants for St. HOPE, the nonprofit educational organization he founded. Walpin found that Johnson and St. HOPE had failed to use the federal money for the purposes specified in their grant, and had also used federally-funded AmeriCorps staff for, among other things, "driving [Johnson] to personal appointments, washing his car, and running personal errands." Walpin's investigation led to Johnson being banned from receiving any more federal dollars.

That was until acting United States Attorney  Lawrence Brown got involved. Brown came to made a deal with Johnson, without involving Walpin. The deal enabled Johnson to once again received federal money. With Johnson funded, Brown went after Walpin , filing an ethics complaint against him. Lawrence Brown's attacks on Walpin saved Johnson from more trouble.

Yesterday the Republicans on the Committee on Oversight and Government Reform  issued a supplement to the report they filed last November. The report contains emails that show that at the same time Brown was secretly fixing the Johnson case and targeting Walpin he was trying to get President Obama to appoint him as permanent U.S. Attorney. As  Brown was trying to fix things for  Obama buddy Kevin Johnson, he was hoping to get a job from the Obama White House. Something smells a bit funny.
Lawrence Brown was actively seeking a Presidential appointment as the U.S. Attorney at the same time he was negotiating a lenient settlement agreement with Kevin Johnson, excluding the Inspector General from the negotiations, and filing a complaint against Walpin with the Integrity Committee; and Lawrence Brown and Matthew Jacobs, Kevin Johnson’s attorney, frequently exchanged informal emails about Walpin, which do not suggest an appropriately arm’s length negotiating relationship.
Rather than diminishing the appearance that politics played a role in the removal of Gerald Walpin, these new documents reinforce that appearance. The new documents make the President’s initial explanation that he merely “lost confidence” in the Inspector General seem even less credible.

In August 2008, the Inspector General sent a referral for criminal and civil prosecution of Kevin Johnson to the U.S. Attorney’s Office for the Eastern District of California. That office announced its settlement with Johnson and St. HOPE on April 9, 2009. One document provided by the Justice Department after the publication of our initial report makes it clear that in the midst of his investigation of Johnson, Brown was actively seeking a Presidential appointment to elevate him to the U.S. Attorney position.

On January 5, 2009, Acting U.S. Attorney Lawrence Brown wrote a letter to Senator Dianne Feinstein to express his interest in the appointment. After outlining his professional qualifications, Brown wrote:
As this is a political appointment, I will note that for the past two years, I have been registered as Decline to State. From 1988-2007, I was a registered Democrat and from 1982-1988, a Republican. As may be evident, I am not a rigid ideologue and discovered that I simply did not fit neatly within either party. I chose to ultimately become an independent because I felt that in my line of work, namely the administration of justice, neither party has a monopoly and its handiwork must be performed in non-partisan fashion. I count myself in the ranks of those who have grown weary of the overly-simplistic "red state/blue state" debates over complex issues and enthusiastically embrace President-elect Obama's call to abandon such labels and become the united states [sic] of America.
Brown’s letter is interesting for two reasons. First, it undermines the notion that Brown’s conflict with Walpin demonstrates that the controversy was non-partisan. During public relations battle that ensued after the President’s removal of Walpin, allies of the White House often cited Brown’s complaint against Walpin as having been initiated by the “Republican U.S. Attorney in California.” However, as this letter makes clear, Brown was, in fact, a registered Democrat for 19 years before recently becoming an independent.
Second, Brown’s letter raises new questions about his potential motivations. It would be reasonable for an already skeptical public to wonder whether Brown excluded Inspector General Walpin from negotiations and settled the St. HOPE matter with Johnson in order to curry favor with the White House because Brown wanted the President to appoint him as U.S. Attorney. The appointment was made after the controversy erupted, and Brown did not receive the promotion he was seeking. Instead, the President appointed Benjamin Wagner on August 6, 2009, and he was sworn in on November 9, 2009. Brown subsequently left the U.S. Attorney’s office where he had worked since 2003. On January 28, 2010, he was appointed to the Sacramento Superior Court.

Matthew Jacobs, Kevin Johnson’s attorney, frequently sent the Acting U.S. Attorney acerbic and sarcastic emails detailing his complaints about Inspector General Walpin. If Brown had used the Inspector General’s zealous advocacy on behalf of the taxpayers as a foil in the negotiations with Jacobs, then perhaps he could have extracted a more favorable settlement for the U.S. government.

Rather than taking that course or simply acknowledging receipt and offering no further comment, Brown chose to send several sympathetic replies to Jacobs.

On the afternoon March 24, 2009, Jacobs wrote to Brown:
Larry, I expressed my outrage over Walpin's letter to the editor to Ken, who I'm sure has communicated it to you, but that did not have the fully cathartic effect I desired so I must try another tack:
The U.S. Attorney (Greg) already told this guy once he's not supposed to speak publicly about federal cases in this District.
He's not supposed to speak publicly about federal cases in this District. The DOJ regs explicitly state that the U.S. Attorney is the primary spokesperson for all federal law enforcement in the District. Moreover, Hilburg has stated repeatedly, and as recently as Saturday's Bee article, that he can't comment on ongoing investigations. So Walpin knows he's not supposed to comment.
WTF is wrong with this guy! First, he tried to effect the election; now he's messing around with the entire region's federal funding! Over this case?! In all seriousness, the U.S. Attorney needs to stand up and say this isn't right. The U.S. Attorney represents the face of justice in this District, and for this District. Please.
Thanks. Matt
Brown initially replied nine minutes later,
“Message heard loud and clear, Matt. I am at a complete loss and do in fact plan to speak with Gerald [Walpin].”
Then the next morning Brown replied again,
“Off the record, as they say, I have spoken with Mr. Walpin this morning and expressed my views in no uncertain terms. I am not going to get into details of what was said.”
Jacobs’ complaints to Brown about Walpin’s communications with the press later formed the basis of Brown’s official complaint to CIGIE. CIGIE eventually found the complaints had no merit, so Jacobs was simply wrong about whether such press communications were appropriate. However, CIGIE’s decision came after Walpin had already been removed by the President. Prior to receipt of these documents, it appeared that whatever the merits of the complaint against Walpin, at least it originated with the U.S. Attorney’s office, which tends to suggest some level of credibility on first blush.

In light of these emails, it now appears that Brown was actually parroting to CIGIE supposed grievances first presented to him by Kevin Johnson’s attorney. Moreover, Brown apparently exceeded his authority by failing to obtain the Justice Department permission before filing the complaint against Walpin. The U.S. Attorney’s Manual, Section 1-4.150 “Reporting Allegations of Misconduct Concerning Non-Department of Justice Attorneys or Judges” states that, “Allegations of misconduct by non-DOJ attorneys or judges shall be reported to [the Office of Professional Responsibility (OPR)] for a determination of whether to report the allegation to appropriate disciplinary officials.” Brown did not follow this guidance to report the allegations he received from Johnson’s attorney to OPR. Rather, he apparently repackaged them as his own and sent them directly to CIGIE.

Together with his efforts to obtain a political appointment from the President, Brown’s communications with Johnson’s attorney contribute to the appearance that Walpin’s removal was more about his vigorous pursuit of the St. HOPE matter than about any other legitimate, unrelated factors.
There were also incriminating documents coming out of the White House:
The key document in the newly produced material was the May 21, 2009 memo from CNCS General Counsel Frank Trinity to Elana J. Tyrangiel of the White House Counsel’s Office. It accompanied a set of documents sent from CNCS to the White House on the day after Alan Solomont went to the White House to begin the process of removing Walpin. In the memo, Trinity outlined and provided documents related to several “issues with Gerald Walpin’s performance and conduct as Inspector General.”

As explained in the initial report, these complaints about Walpin formed virtually the sole basis of the White House review since there was no attempt to obtain information from Walpin, others in the IG office, or even directly from the CNCS Board of Directors until after the President had made his decision to remove Walpin.

Trinity’s memo, however, reveals that the White House considered issues in deciding to remove Walpin that it did not disclose in the official notice to Congress. Rather than supporting the removal decision, some of the issues cited by Trinity contribute to the appearance that the removal was motivated by improper political purposes. For example Trinity suggested that Walpin’s Special Report to Congress was a grounds for removal. Yet, Section 5(d) of the Inspector General act sets out a formal procedure by which notify Congress of serious problems in an agency:
Each Inspector General shall report immediately to the head of the establishment involved whenever the Inspector General becomes aware of particularly serious or flagrant problems, abuses, or deficiencies relating to the administration of programs and operations of such establishment. The head of the establishment shall transmit any such report to the appropriate committees or subcommittees of Congress within seven calendar days, together with a report by the head of the establishment containing any comments such head deems appropriate.
The communication is known as a seven-day letter because the provision requires the agency to transmit it to Congress, along with its response, within seven days.
If this provision is to be effective in ensuring that Congress is advised of particularly serious problems as quickly as possible, then it cannot be the case that an Inspector General would face retaliation, removal, or other adverse action for transmitting a seven-day letter. Yet, Trinity cited the fact that Walpin drafted and sent a seven-day letter at the top of the list of issues of concern that he sent to the White House..

He wrote: “The Inspector General … submitted a ‘Seven Day’ Special Report to Congress contrary to the applicable provisions of the Inspector General Act.”

Trinity’s assertion that the seven-day letter was “contrary to the applicable provisions of the Inspector General Act” is apparently based on his belief that Walpin provided copies of his report to Congressional staff prior to the seven day deadline rather than waiting for the agency to transmit the report along with its comments. However, Trinity’s assertion is not supported by evidence that Walpin actually transmitted the report prior to the seven day deadline. In any event, there is no prohibition in the Inspector General Act against the Inspector General doing so.
Trinity’s memo to the White House also cites other concerns not disclosed to Congress in the official notice of removal or otherwise communicated to Congress before. Specifically, Trinity raised an issue related to an OIG audit of an AmeriCorps program at the City University of New York (CUNY). Like his review of Kevin Johnson’s use of AmeriCorps funds at St. HOPE Academy, the review of CUNY had been a source of contention between Walpin and agency management around the time of his removal. Although CNCS and the White House claimed that the decision was unrelated to CUNY, Trinity lists it in his memo to the White House Counsel’s Office, making an unusual allegation that Walpin, “substituted his personal views for policy judgments made by Congress recommending that the Corporation recoup up to $75 million from CUNY.”
Whatever the merits of the policy dispute between Trinity and Walpin, it seems inappropriate to cite those differences as some sort of basis for removing Walpin from office. The normal course for an agency that disagrees with an Inspector General recommendation is to simply communicate the agency position to the Inspector General and to Congress rather than initiating a termination.
Wasn't this the President who campaigned against Washington Politics as usual? I suppose he meant except when his buddies are in trouble.  The Full report can be found at the website of the Republican Committee on Oversight and Government Reform.

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