United States Senator Bill Hagerty (R-TN), a member of the Senate Appropriations Committee, sent a letter to U.S. Comptroller General Gene Dodaro at the U.S. Government Accountability Office (GAO) seeking a determination concerning the lawfulness of the Department of Homeland Security’s (DHS) creation of a “Disinformation Governance Board.”

“I write to seek your determination regarding whether any officer or employee of the Department of Homeland Security, including Secretary of Homeland Security Alejandro Mayorkas, violated the Antideficiency Act with respect to the creation of the Disinformation Governance Board,” Hagerty wrote.

The Antideficiency Act prohibits “making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law”—or, in other words, spending taxpayer funds on items that were not approved by Congress in law. Violations of the Antideficiency Act can result in administrative or criminal penalties. The Fiscal Year 2022 Omnibus Appropriations Act does not approve the Secretary of Homeland Security funding the operations of a Disinformation Governance Board and expressly prohibits the Secretary from using taxpayer dollars to alter or reallocate department functions or organizational units.

After Hagerty called attention to this issue last week, U.S. Secretary of Homeland Security Alejandro Mayorkas suddenly began calling the Board a “working group,” suggesting that he may have recognized the Antideficiency Act violation given that the Department already used funds to establish this Board, including by hiring Nina Jankowicz as its Executive Director. 

“For these reasons, I am requesting your determination regarding whether any officer or employee of the Department of Homeland Security violated the Antideficiency Act with respect to the creation of the Disinformation Governance Board… Given that this Board impacts bedrock American freedoms and the relationship between the government and American people, I respectfully request that you provide your determination as expeditiously as possible,” Hagerty concluded.

On Monday, Hagerty sent a letter to Secretary Mayorkas to confirm that he will submit to Congress for review the rules and policies establishing this “Disinformation Governance Board” to focus on “countering misinformation and disinformation” in America, as required under the Congressional Review Act (CRA), and to alert the Secretary that the creation of this Board may violate the Antideficiency Act.

A copy of the letter to Dodaro can be found here and below.

Dear Comptroller General Dodaro:

I write to seek your determination regarding whether any officer or employee of the Department of Homeland Security (“Department”), including Secretary of Homeland Security Alejandro Mayorkas, violated the Antideficiency Act (31 U.S.C. § 1341(a)(1)(A)) with respect to the creation of the Disinformation Governance Board (“Board”).

As background, on April 27, 2022, at a House of Representatives Appropriations Committee hearing, Secretary Mayorkas announced the creation of the Board to focus on “countering misinformation and disinformation” in America.  Nina Jankowicz was hired as the Board’s Executive Director.  

On April 29, 2022, I wrote a letter to Secretary Mayorkas noting that establishment of this Board may violate the Antideficiency Act (31 U.S.C. § 1341(a)(1)(A)), which prohibits “making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law.”  To this end, this Board was established and hired an Executive Director, despite that no funds were appropriated for this Board and that Congress expressly defunded its establishment through Section 513 of Division F of the Fiscal Year 2022 Omnibus Appropriations Act (P.L. 117-103), which specifically prohibited the Secretary of Homeland Security from using any funds provided by Congress to “allocate or reallocate functions among the officers of the Department of Homeland Security or to establish, consolidate, or alter organizational units within the Department of Homeland Security.”  As you know, an officer or employee who violates the Antideficiency Act is subject to administrative and criminal penalties.

Perhaps as a result of this potential violation, on May 1, 2022, Secretary Mayorkas began calling the Board a “working group.”  Yet, it’s clear that the Department has already used funds to establish this Board, including by hiring Ms. Jankowicz as its Executive Director.  Thus, while the Department is now downplaying the Board as a “working group”, it seems indisputable that funds have already been expended on its establishment in violation of Antideficiency Act.  Indeed, this hasty change of explanation suggests such a violation.

For these reasons, I am requesting your determination regarding whether any officer or employee of the Department of Homeland Security violated the Antideficiency Act with respect to the creation of the Disinformation Governance Board.  I look forward to your opinion regarding this question.  Given that this Board impacts bedrock American freedoms and the relationship between the government and American people, I respectfully request that you provide your determination as expeditiously as possible.  

Please let me know if my office can provide any additional information that may be helpful.  Thank you, and I look forward to your prompt reply.

Sincerely,

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