What did top GOP oversight official Rep. Darrell Issa know, and when did he know it?
That’s the question Department of Homeland Security (DHS) Sec. Janet Napolitano must be asking herself after the California Republican, who is chairman of the House oversight committee, showed a couple of aces in their high-stakes oversight poker game on Tuesday.
Their game is not exactly on the level. Issa has a whistleblower at the DHS giving him an inside edge on every move. And uncertainty over what he knows may be why the agency is snubbing Issa on his document deadlines.
Thursday, Napolitano missed Issa’s second deadline, one made in response to her unceremoniously missing the original one.
Last Friday, a top Napolitano lieutenant sent Issa a short letter promising to comply “expeditiously,” only to let the deadline expire the next day.
Experts say it was a pretty big brush off.
“You don’t call up the committee one day before the deadline and tell them for the first time that you’re going to miss it,” said Adam Goldberg, a partner at Orrick, Herrington & Sutcliffe and veteran of the oversight wars during the Clinton administration, when he served as a counsel to the president.
“I think that’s kind of irresponsible by the agency,” said Don Goldberg, a former special assistant to Bill Clinton who managed that administration’s response to Travel-gate, the FBI’s siege of Waco and other crises. “I would think the agency would want to get out of his crosshairs.”
So what’s Napolitano thinking? Is DHS suffering from a steep learning curve after two years of almost no oversight by congressional Democrats?
“I suspect it’s just taking some time to get organized,” said Democratic strategist Paul Begala.
“I assume the problem is bureaucratic confusion…people are probably learning the ropes of congressional investigations,” said Adam Goldberg.
Another view is the Obama administration is sizing up the new GOP majority. Victories on Election Day gave Republicans the power of congressional subpoena, granting virtually unlimited authority to demand documents and compel testimony by key officials.
“In missing this deadline, the administration is saying ‘we’re not going to make this easy, we’re not going to roll over. You’re gonna have to work for these documents.’ Ultimately they’ll turn them over,” said Mark Paoletta, a partner at Dickstein Shapiro who managed nearly 200 oversight hearings for Republicans on the Energy and Commerce Committee.
But the key behind DHS’s seemingly flippant response could be documents Issa already has.
Issa “obtained documents from an unnamed career employee that called into question statements made at the September briefing” by DHS Chief Privacy Officer Mary Ellen Callahan, a committee spokesman said.
At the September briefing, Callahan ardently assured Issa nothing was awry with the DHS FOIA process after the Associated Press reported sensitive information requests – those from lawmakers, watchdog groups, and reporters — were subjected to unusual scrutiny by Obama’s political advisers.
Napolitano, in responding to Issa’s requests now, has to tread carefully. Her agency already misled Issa once, either by accident or design. What does he know? And what documents does he have?
Among other things, Issa knows that instead of searching for the documents he asked for, Napolitano’s lawyers “instructed career staff in the Privacy Office not to search” for them.
Though missing Issa’s deadline Thursday, Napolitano may be ready to play her hand.
A DHS official said the agency’s “intention is to provide a batch of documents by close of business” Friday.
We’ll see. If not, Issa always has the force of law to compel the documents.