Letter to Michael Horowitz, Inspector General of the United States - Wicker, Grassley Urge DOJ Inspector General To Investigate Abuses At The Commerce Department


Date: Dec. 12, 2022
Location: Washington, DC

Dear Inspector General Horowitz:

In July 2021, Senator Wicker published an investigative report documenting misconduct and potential criminal activity within the Department of Commerce's Investigations and Threat Management Service (ITMS). Despite the word "investigation" in their title, ITMS had no legal authority to investigate criminal violations and instead relied on a special deputation they received from the U.S. Marshals Service (USMS) to conduct countless improper searches, seizures, and even several arrests. Senator Wicker's findings were later reaffirmed by a report from the General Counsel at the Department of Commerce and resulted in the disbandment of ITMS. In light of the findings of both reports, it's necessary to investigate the institutional failures that enabled the misconduct and why the Department of Justice (DOJ) never intervened, despite clear evidence that ITMS lacked statutory authority to conduct criminal investigations. For these reasons, we ask that you lead a root cause analysis with other relevant inspector general offices regarding the oversight failures at DOJ and its components, including the USMS and FBI, with respect to their involvement with ITMS.

By way of background, the Special Deputy Marshal program allows the Marshals Service to deputize federal and state law enforcement to perform specific law enforcement duties. Under this program, the USMS is able to deputize anyone with at least one year of law enforcement experience to perform a specific task. ITMS agents, despite not having met the minimum experience requirement, were granted special deputy authority for the limited purpose of protecting the Secretary of Commerce and critical infrastructure.

ITMS abused the special deputation to routinely engage in activities outside of that purpose -- activities that were illegal and violated the constitutional rights of hundreds of individuals. For example, ITMS investigated a Chinese-born scientist employed at the Department of Commerce on charges of espionage. They interrogated her for hours, and drafted a criminal referral to federal prosecutors. ITMS agents initially claimed the scientist provided classified documents to a Chinese national, and DOJ prosecutors relied on this assertion to bring criminal charges. The charges were later abruptly dropped a week before trial was set to begin when it became clear that the documents were unclassified and publicly available. It remains unclear why prosecutors and federal investigators did not perform basic due diligence to determine the status of the documents before bringing forth charges. The scientist in question later sued the federal government for wrongful prosecution and was awarded $1.5 million in damages.

In another instance, ITMS opened a counterintelligence investigation into a class of elementary school students who sent a letter to the Commerce Secretary requesting the addition of a specific whale to the Marine Mammal Protection Act of 1972. As part of their investigation, ITMS investigators ran the names of these children through the National Crime Information Center database, which is maintained and operated by the FBI. Accessing criminal databases for unauthorized purposes is a violation of 18 U.S.C. §1030, for which the Department of Justice has prosecuted law enforcement officials in the past. Yet, we are unaware of any investigative or disciplinary action taken against ITMS agents for these apparent violations.

On June 9, 2021, Senator Grassley wrote to Director Wray requesting more information about the FBI's working relationship with ITMS. The FBI's August 27, 2021, response to Senator Grassley's letter failed to answer key questions and provide records about the FBI's relationship with ITMS, although the FBI admitted that they did provide "analytical and investigative assistance" to ITMS. On October 13, 2021, Senator Grassley sent a follow up letter to the FBI which sought more information on the type of "analytical and investigative assistance" that the FBI provided. The FBI has failed to respond. While our investigation has focused on wrongdoing by ITMS, it is important to understand the FBI's knowledge and awareness, if any, regarding ITMS's illegal activities.

We also have reason to believe that ITMS agents relied on their special deputation to fly on commercial airlines while armed. Federal law enforcement agents and state police, in limited circumstances, are allowed to fly on civilian aircraft while armed after receiving TSA approved training. In an effort to determine the basis for ITMS agents flying armed, our staffs requested information regarding how often ITMS agents flew while armed, what type of training ITMS agents received, and for copies of ITMS's application(s) for receiving a Unique Flying Armed Number (UFAN)--a number required by TSA for federal law enforcement agents to fly armed. We were informed that providing information on flying histories of ITMS agents would be too burdensome because the information is kept at individual airports and, due to a "data migration" error, TSA would be unable to provide copies of the ITMS UFAN applications.

By acquiring Special Deputy Marshal authorities, ITMS gained access to the very federal law enforcement tools that allowed the aforementioned abuses. Even worse, ITMS gained the ability to cloak their bad conduct with a veil of legitimacy. This cloak of legitimacy appears to have allowed them to go unchecked for years, despite clear signs that they were engaging in illegal activities.

As Senator Wicker has said, "ITMS [] mutated into a rogue, unaccountable, police force without a clear mission." They spied on Commerce employees, illegally searched employees' locked cubicles, used the FBI to file erroneous criminal charges against distinguished employees, and collected data on citizens that appropriately exercised their First Amendment rights by visiting or writing to the Commerce Department. These are just a few examples.

In light of the seriousness of the facts outlined above, we request that you lead a root cause analysis with the relevant offices of inspector general regarding the oversight failures at the Department of Justice and its components, including the USMS and FBI, with respect to their involvement with ITMS. Congress needs to know what went wrong, and how these illegal activities can be stopped from happening again. Thank you for your prompt attention to this matter.