6 Things To Know About The COVID-19 Relief Watchdog

By Andrew Kragie
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Law360 (April 6, 2020, 4:32 PM EDT) -- Brian D. Miller, formally nominated Monday to be the special inspector general for pandemic recovery, is currently a White House lawyer but previously spent nearly a decade as the General Services Administration's watchdog. Here's what you should know about Miller and his possible new role overseeing the CARES Act and its $2 trillion in relief to individuals and businesses.

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.

Confirmation prospects

Miller's nomination drew Democratic criticism, especially because he served President Donald Trump during his impeachment. Public documents shows he handled correspondence with a Democratic senator's office, declining to provide requested information.

"To nominate a member of the president's own staff is exactly the wrong type of person to choose for this position," Senate Minority Leader Chuck Schumer, D-N.Y., said in a statement Saturday.

House Speaker Nancy Pelosi, D-Calif., made similar comments, saying Trump is moving "to disregard key oversight provisions that hold the administration accountable to the law." She pointed to the president's signing statement limiting provisions that required the special inspector general to report to and consult with Congress.

However, Covington & Burling LLP partner and Clinton administration veteran Brian D. Smith said on a briefing call Friday that the provisions of Trump's signing statement "were relatively minor and ... don't have much effect." 

Even if every Democrat opposes Miller's confirmation, Senate Republicans can approve him with a simple majority thanks to the Democrats' 2013 decision to invoke the "nuclear option" and lower the traditional 60-vote bar for almost every nomination. And it seems likely Miller could attract some Democratic support; in 2005, the Senate approved him for the GSA post by voice vote, meaning he was not controversial and no senator requested a recorded vote.

Not alone in oversight

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 recent Law360 guest column. Technically the special inspector general is limited to programs the U.S. Department of the Treasury establishes under the new law, but Smith said that scope can be broader than it sounds.

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. The association had picked as committee chair acting Pentagon watchdog Glenn A. Fine, who previously worked at Dechert LLP after a decade as the U.S. Department of Justice inspector general. However, Trump on Tuesday removed Fine from his acting position, which made him ineligible to serve on the pandemic panel.

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 Pelosi 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. Schumer on Monday picked Bharat Ramamurti, a former economic policy adviser to Sen. Elizabeth Warren, D-Mass.

Pelosi has also said she wants to form a select House committee led by the chamber's No. 3 leader, Majority Whip Jim Clyburn, D-S.C. However, Republicans have questioned the need for another body as well as whether it would turn into a partisan effort to question the Trump administration's response to COVID-19.

And some senior House Democrats have called for a panel to investigate the government's early response to the pandemic, modeled after the bipartisan 9/11 Commission that evaluated the nation's fight against terrorism. Intelligence Committee Chairman Adam Schiff, D-Calif., and Homeland Security Committee Chairman Bennie Thompson, D-Miss., have circulated proposals, although Pelosi said last week that it was too early for an "after-action" review.

In addition, any congressional committee can investigate issues in its jurisdiction, and several agency inspectors general will play a role. The bill provided an additional $25 million for the Small Business Administration's watchdog to look into the $349 billion authorized for loans and grants to sustain small businesses. The U.S. Department of Labor inspector general also got $25 million, and other watchdogs also received millions in new funding.

Impact of past work

Although he handled many larger audits and recovered more than $1 billion for the government, Miller drew the most national attention for his report on a lavish GSA conference in Las Vegas in 2010. His team documented more than $820,000 in costs that included $44 daily breakfasts, $5,600 for three semi-private catered in-room parties, and $21,000 on commemorative coins and other mementos. GSA Administrator Martha Johnson resigned in 2012 after firing other senior leaders.

Advocate of disclosure

Miller was a major proponent of the 2008 change to the Federal Acquisition Regulation mandating disclosure when federal contractors find significant overpayments and credible evidence of fraud.

"The idea is that contractors and the federal government are partners, and if your partner is being victimized by a crime or being ripped off by a fraud, you'll tell your partner," he told Law360 in 2014. "We view the act of making a disclosure as an indication that the company is presently responsible to do business with the federal government. We don't see any reason to refer the company for suspension and debarment, because they're doing the right thing in coming to us."

He added that if contractors "have a problem keeping track of the price reductions, they can come in and disclose it and work with our attorneys and get it all resolved, and that way it doesn't turn into, potentially later on, a qui tam suit or a False Claims Act investigation."

Open to prosecutions

At his 2005 confirmation hearing to become the GSA watchdog, Miller told senators that his decade as an assistant U.S. attorney made him familiar with prosecuting offices and ready to refer cases.

"The ultimate weapon against waste, fraud and abuse is criminal prosecution," he said. "Criminal prosecution will deter those tempted to defraud the government. As Benjamin Franklin warned at our nation's founding, 'There is no kind of dishonesty into which otherwise good people more easily and frequently fall than that of defrauding the government.'"

For example, the Las Vegas conference organizer was indicted in 2014, pled guilty and was sentenced to three months in prison.

After the indictment, Miller told Law360 that fraud prosecutions make examples out of people. "Unlike violent criminals, who are not easily deterred, someone who is committing a crime that requires thought, such as defrauding the government, those people can be deterred," he said.

He's not just about the law

Along with his undergraduate and law degrees, Miller has a master's degree from Westminster Theological Seminary, a Presbyterian institution in Pennsylvania that says its master of arts program focuses on studying the Bible in its original Hebrew and Greek.

--Editing by Adam LoBelia.

Update: This article was updated with new information about Glenn A. Fine.

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

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