Pandemic IG: ‘This Office Was Almost Set Up To Fail And Yet We're Succeeding’
Brian Miller reflects on a year of coronavirus oversight.
Coming up on the one-year anniversary of his confirmation, Special Inspector General for Pandemic Recovery Brian Miller is reflecting on the challenges and successes his office has experienced in overseeing relief programs for the novel coronavirus and resulting economic recession.
“We've had people challenge our jurisdiction. We've had people trying to slow us down in various ways,” Miller said in an interview with Government Executive. “We've come through that in the last year, I think, in a very successful way, in a very surprising way. In some ways, this office was almost set up to fail and yet we're succeeding and accomplishing the job.”
Miller was nominated for the job in April 2020, after then-President Trump had questioned the need for such a position in the first place, as part of a signing statement accompanying the $2.2 trillion CARES Act. The Senate confirmed him on June 2, 2020 amid some skepticism due to his most recent job as assistant and senior associate counsel in the Office of White House Counsel. Miller has held a number of other high-level positions in government since 1992, such as IG at the General Services Administration, and senior positions at the Justice Department, including assistant U.S. attorney general, senior counsel to the deputy attorney general and special counsel on health care fraud.
Miller’s office released a report on April 30 saying there were “turf battles” with the Treasury IG that led to him asking the Justice Department’s Office of Legal Counsel to issue a ruling, which then limited his office’s jurisdiction. (Treasury Department and Treasury IG officials gave statements to Government Executive about their commitments to oversight in pandemic programs in response to the ruling).
Government Executive interviewed Miller on Monday about this challenge and also pandemic oversight in general over the past year, his career in government and more. The interview has been edited for length and clarity.
What have been your biggest challenges and biggest successes in the last year?
I think my biggest challenges were almost obvious: that starting in a new organization from nothing is the biggest challenge. Being able to hire not only competent, but excellent staff within the year was another huge challenge. At one point, I had a challenge just hiring the special agents, investigators, because that was being held up at one point. But we managed to work through that and I now have special agents to do the investigations and auditors to do the audit.
We also had ... successes. We've taken an innovative look at how to investigate CARES Act fraud. And from the very start, we wanted to look at what we call “multiple dipping,” essentially “double dipping”...[These are] people who take advantage of Cares Act programs, maybe more than one, maybe two, sometimes three, even four Cares Act programs.
And at times, it's okay. But if you're not telling the other programs that you're actually getting this money, and you're not using it for the purpose you're requesting it, that's a problem... If you say you need it for a certain purpose and the first program took care of that purpose, then the rest of the money is just siphoned off for your own personal use, which is a total misuse and abuse of the program.
And so we wanted to make sure that people were not taking advantage of that fact and we thought, since we're focused on CARES Act alone (and that's one of the benefits to being a special inspector general, rather than a general inspector general) we thought we'd take a look at those programs. We're looking at different sets of information and data to try and prevent that and identify it and go after those who are abusing the program.
I think we've sent out over 100 referrals, based on our own analysis, our looking at the data, looking at those who are benefiting from the programs and trying to identify the fraud. I have a number of very experienced special agents, very experienced people who do data analytics and very experienced federal prosecutors, and so they know how to put together cases. I know how to put together cases and we are doing that. And I think that's the greatest accomplishment.
We've had people challenge our jurisdiction. We've had people trying to slow us down in various ways and so we've come through that in the last year, I think, in a very successful way, in a very surprising way. In some ways, this office was almost set up to fail and yet we're succeeding and accomplishing the job.
Has there been any fallout from the report your office released a little over a week ago on turf battles? Have you received any reaction from lawmakers about your suggestion that they amend the law to overturn the Office of Legal Counsel’s decision?
We've worked with some lawmakers; we've suggested language to add to a bill that would restore our jurisdiction over these key programs managed by the Treasury Department. And so we're working with lawmakers, but obviously we could use more support and obviously the more people that are aware of it, the better it is. When the position was established, over a year ago with the CARES Act, lawmakers came out and said, “This position is critical for gaining support for the CARES Act itself and for providing aid to struggling companies, states, municipalities and other troubled entities.”
There's a lot of congressional concern and a lot of interest in establishing the Special Inspector General for Pandemic Recovery...We're looking at CARES Act programs managed by the Treasury and so it came as a disappointment to us that the Office of Legal Counsel did not uphold our jurisdiction. There's just one of the challenges and we're working through it.
And despite all that, we're still working through it. We're still getting information from various sources. Part of the problem is that when the Treasury Inspector General raised this jurisdictional hurdle and that cut off information that we were getting from the Department of the Treasury, we were getting access to information on these programs and then the spigot turned off...so that slowed us down. But there are other ways to get information as well. So we continued and we're performing innovative work, we're working directly with federal prosecutors and doing great work.
Will you be overseeing implementation of the COVID relief package enacted in December 2020 and/or the American Rescue Plan?
Well, we were not mentioned in those and that was another disappointment. Senator [Mike] Crapo, [R-Idaho,] did urge the [Treasury] secretary to make sure that we were included in any oversight provided even in the new legislation. Ultimately, I would like to see that reflected in legislation that would make that clear.
Upon getting confirmed, have you gotten any insight or advice from the other special IGs (particularly the IG for Afghanistan Reconstruction office, which also faced jurisdictional issues)?
Yes, I have. I have spoken with other special inspectors general [and] former special inspectors general. They all go through the same sorts of struggles and they had some advice for me; they encouraged me to speak to people like you about this, to make sure that Congress knows and they know what's at stake. They do face the same issues. It never changes, although you would think we've learned by now, but other inspectors general have similar problems. The Special Inspector General for the Troubled Asset Relief Program (SIGTARP) even wrote a book “Bailout,” where he described his tensions with the Treasury IG and some of the challenges that came his way in terms of appropriations, in terms of funding, even in terms of jurisdiction. And so, ultimately, he was able to get some legislation to assist him.
To the extent you’re able to speak about this, have you had many whistleblowers come to your office? I know in your initial report in August 2020 you wrote about setting up a whistleblower hotline.
We've gotten whistleblower complaints, the hotline is working and we are investigating whistleblower complaints. As I've said many times in the past, we get some of our best information from insiders, people who blow the whistle, who are courageous enough to actually give us the information. So it's vital that we protect them and that we use the information we follow up on with whistleblowers. So we are and we are receiving those.
Now looking at the view from 10,000 feet, you first started in government about 29 years ago. Have you learned anything from your previous roles that has helped you with this new job?
I have about 30 years experience in the federal government, as a career attorney in the Justice Department for about 15 years in various roles and part of that was being a federal prosecutor. And then I was even in private practice for a time. I think I've gained a lot of insights and a lot of experience that I am using in terms of putting these cases together and trying to determine what audits are important to do and not to do because we want to make sure that we always make a difference and that we make a contribution. I think I have gained a lot in terms of trying to use good judgment in what we're doing and trying to fulfill our roles. I also learned a lot about the government and the interest that various agencies have and branches have and how it kind of functions or maybe more accurately doesn't function and how to work through those glitches and problems.
Going back to the pandemic, on an episode of Government Executive’s podcast that aired on May 11, 2020––essentially a year ago––I spoke about my coverage of your confirmation hearings and I used the metaphor of a “Rorschach test” to describe the reaction to them. Was that a good metaphor, why or why not?
I think it was a great analogy. In fact, I've used it. I was struggling to remember who suggested it to me, I knew it wasn't original with me, but now I will credit you. But I think it's very true. If people have worked with me, no matter what their party affiliation is or what their politics are, they know that I'm going to approach it impartially and with integrity. And it's reflected even in some of the letters that were sent, supporting my nomination. Assistant U.S. attorneys, former assistant U.S. attorneys, other prosecutors wrote letters on my behalf.
I think it's a matter of who you ask and what they see. Obviously, I believe I am impartial and nonpartisan. I think my history shows that. I was critical of a Bush appointee, so critical that the president fired her. Then in the next administration I was also critical of a program run by the agency as well. It doesn't matter what the politics are. I think it's more important just to follow the law, apply the facts, and let the chips fall where they may, and then we just move forward. Those who are interested in politics will always be interested in politics and [will] try and describe the events in a political way because that's what they're interested in. It's not what I'm interested in.
Is there anything else you’d like to add that Government Executive’s readers or I should be aware of?
Well, I hope that many of your readers will remember me from my tenure as inspector general of GSA. It's probably too long ago for them to remember me as a prosecutor, but I was fortunate enough to be involved in some fairly high level cases as a federal prosecutor.