Sens. Advance WH Lawyer Tapped For Virus Relief Watchdog

By Andrew Kragie
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Law360 (May 12, 2020, 10:39 PM EDT) -- The Senate Banking Committee on Tuesday saw a nearly party-line vote to advance a White House lawyer's nomination to monitor the U.S. Treasury Department's coronavirus relief efforts, with all but one Democrat opposed and questioning his independence.

Brian D. Miller, who currently works in the White House counsel's office but previously served as watchdog for the General Services Administration, saw a 14-11 committee vote to send to the Senate floor his nomination to be the Special Inspector General for Pandemic Relief. Sen. Doug Jones, the moderate Alabama Democrat, joined Republicans in a tally that otherwise divided along party lines for a position monitoring more than $500 billion authorized by the CARES Act and trillions more in Federal Reserve lending.

The panel's top Democrat, Sen. Sherrod Brown of Ohio, said he opposed Miller because he didn't show how he would maintain his autonomy and did not answer questions about his work at the White House, citing privileges.

"The [CARES] Act provides the treasury secretary with broad discretion over the lending programs, so it is critical that the special IG can act independently from the administration and hold bad actors accountable," Brown said in a statement. "As an IG nominee with personal ties to the White House counsel's office in an administration outwardly hostile to anyone who tries to hold the president accountable, Mr. Miller failed in committee to explain, or in the letters afterward, how he will establish his independence from his current bosses. He was unwilling to condemn the president's impulsive firings of several inspectors general who challenged this administration."

Democrats questioned Miller's independence, focusing on his 2018 op-ed for The Hill newspaper that urged inspectors general to remain independent not just from the executive branch but also from Congress. That column came as the Trump administration battled oversight efforts and preceded Miller joining the administration.

Banking Committee Chairman Mike Crapo, R-Idaho, praised Miller's decade of experience at GSA and said he "has been outspoken on the need for inspectors generals to remain independent."

Miller's nomination now goes to the full Senate, where he needs just a simple majority for confirmation. The chamber's 53 Republicans are likely to quickly approve him, perhaps with a few Democrats in support like Jones on Tuesday.

"Whatever the president wants from this Congress, from this very spineless Congress, the president gets from this Congress," Brown said.

At his confirmation hearing last week, Miller described a constant battle for independence when he was the GSA watchdog.

"You're never comfortable," he said. "That goes with the territory. ... At the end of the day, you have to be comfortable with your own conscience."

Miller refused to discuss his work in the White House, calling it privileged, but he appears to have played a tangential role in President Donald Trump's impeachment defense, writing perfunctory letters responding to inquires from lawmakers and the congressional watchdog. He characterized his role in the impeachment defense as "just answering the mail."

Before he was a senior associate counsel in the White House counsel's office, Miller spent years at Rogers Joseph O'Donnell PC after leaving the GSA in 2014. The onetime federal prosecutor earned his law degree from the University of Texas School of Law and his bachelor's degree from Temple University.

The CARES Act sets up two other oversight bodies in addition to the special inspector general, as Squire Patton Boggs LLP attorneys outlined in a Law360 guest column. Technically the special inspector general is limited to programs the Department of the Treasury establishes under the new law, but that can still allow for a broad scope.

The Pandemic Response Accountability Committee is a special panel of the inspectors general association — the Council of the Inspectors General on Integrity and Efficiency — that has authority to investigate all coronavirus response efforts, not just those stemming from the CARES Act. It got off to a rocky start when the selected chairman was effectively removed by Trump, who demoted him from his acting role and made him ineligible to lead the group.

The Congressional Oversight Commission has five members: one each picked by the top Democrat and Republican in each chamber, plus a fifth jointly appointed by House Speaker Nancy Pelosi, D-Calif., and Senate Majority Leader Mitch McConnell, R-Ky. Its duties include oversight of Treasury and Federal Reserve efforts to help the economy and sustain businesses. However, the commission still awaits its fifth member has not yet begun operating.

Over Republican objections, House Democrats also set up a Select Subcommittee on the Coronavirus Crisis within the House Oversight Committee. Last week, that panel pushed several public companies to return their small-business relief loans even though they were eligible for the funds.

Between all the oversight mechanisms, white collar attorneys warn that virus relief recipients may face major fraud risks and a decade of government investigations.

At its Tuesday meeting, the Banking Committee also sent another nominee to the floor: Dana T. Wade, to be an assistant secretary at the U.S. Department of Housing and Urban Development and commissioner of the Federal Housing Authority. She drew a 15-10 vote, with Sen. Kyrsten Sinema, D-Ariz., joining Jones and all Republicans in support. Brown argued that she would undermine fair housing rules, while Crapo praised her experience in the department since 2017.

--Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.

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