Set to appear before a Senate oversight committee next Thursday, Ajit Pai will face a barrage of questions about why senior officials at the agency he leads, the Federal Communications Commission, provided false information to Congress—a federal crime, punishable by up to five years in prison, had it been proved they did so knowingly.
The top question, which the commission has yet to answer, and which Democratic lawmakers are itching to ask, is exactly how long Pai knew that Congress and the American people were being misled.
A report from the commission’s own inspector general this week revealed that in January 2018, FCC investigators became convinced three senior officials—David Bray, Tony Summerlin, and Leo Wong—may have broken the law after providing false information in response to congressional inquiries about a purported cyberattack on the FCC. The so-called attack had disrupted the FCC’s comment system, the officials claimed, as the commission sought public input over a proposed rollback of net neutrality protections established during the Obama administration.
After speaking with security professionals at the agency, and after conducting extensive interviews with senior FCC officials and FBI agents contacted after the incident, the inspector general’s office concluded that the comment system was, in fact, overwhelmed by a flood of legitimate traffic and that the problem was further exacerbated by a number of system design flaws.
In June, fraud and public-corruption investigators with the U.S. Attorney’s office in Washington, D.C., declined to prosecute the officials behind the false statements to Congress, which included mischaracterizations of conversations with FBI agents, according to the IG report.
While Pai publicly acknowledged this week that the cyberattack was a hoax, sources say he has yet to reach out to the lawmakers who were deceived (several of whom are traveling) to correct the record personally or rescind letters containing false information that Pai signed over the past year. Multiple Democratic lawmakers are also incensed that Pai, who knew of the report’s findings at least a full day before it was released, has done nothing but place blame at the feet of Bray, his former chief information officer, and his subordinates, in an apparent attempt to clear his own name.
“It was a calculated move,” said a senior Democratic aide, “meant to frame the IG report to his advantage before anyone else was able to read it.”
But a reckoning now appears to be on its way. In statements to Gizmodo, Democratic lawmakers insisted that the investigation into the commission’s handling of this incident is far from over.
“What we don’t know, and what the FCC needs to clear up, is when they knew that they were lying to Congress and the public about it,” said Rep. Debbie Dingell, who sits on the House oversight committee. “If Chairman Pai was advised by FCC general counsel or the FCC inspector general not to notify Congress when he learned no attack took place, we need to see those decisions in writing, along with all internal records related to their made-up cyber-attack.”
The commission has been withholding records related to the incident for more than a year in response to requests from Gizmodo and other outlets under the Freedom of Information Act (FOIA). During that time, the agency’s Office of Media Relations took aim at journalists, blasting them publicly for questioning whether any evidence existed showing a cyberattack occurred.
Last summer, the FCC Media Director Brian Hart accused reporters critical of the commission’s response of being “completely irresponsible” while insisting that the agency had “voluminous documentation of this attack in the form of logs collected by our commercial cloud partners.” At the same time, Hart’s office fed false information to reporters at Politico, the Wall Street Journal, and FedScoop about a purported distributed denial-of-service (DDoS) attack in 2014, which, as Gizmodo previously reported, also never occurred.
“The American people and Congress were lied to for over a year by the FCC, all the way through the public comment process leading to the elimination of the net neutrality rules,” said Rep. Frank Pallone, ranking member of the Energy and Commerce Committee, which oversees the FCC. “That’s simply unacceptable, and we now need to know why the FCC did not come forward with the truth sooner.”
“The investigation into this matter is not over,” added Sen. Ron Wyden, who received multiple letters from Pai last year containing false information about the May 2017 incident. “You cannot lie to the Congress and the American people for more than a year, point fingers when your lie is revealed, and expect to get away with it scot-free.”
It is possible, however, that Pai himself didn’t know the FCC’s statements to Congress were untrue until after he saw the report, which may have only happened on Monday. Asked whether his office notifies FCC leadership when a matter is referred to DOJ involving potential crimes, FCC Inspector General David Hunt told Gizmodo: “In criminal matters we tend to defer to the prosecutorial team.”
The DOJ typically does not acknowledge ongoing investigations and in some cases will not acknowledge ones that are closed. In the latter case, this is typically to shield subjects from unfair scrutiny. However, in this instance, the names of the officials investigated and the crimes they were suspected of are already known. Despite this, when asked, the DOJ would not explain why charges were not pursued.
“We have no comment on this matter,” said William Miller, a spokesman for the U.S. Attorney’s Office for the District of Columbia.
(Gizmodo is now seeking access to Justice Department and FCC records related to the criminal investigation under the Freedom of Information Act.)
In addition to Gizmodo’s FOIA requests, the commission was sued by Kevin Collier, a BuzzFeed News reporter, among others, after it refused to turn over documents related to its “cyberattack” claims last summer. But many of the arguments the FCC used to explain why it needed to withhold certain records now seem suspicious given the facts disclosed by the commission’s inspector general. Countless records, for instance, were withheld or redacted under what’s known as the deliberative process privilege, an exemption to FOIA intended to protect “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”
Attorney Daniel Novack, who represents Collier pro bono in his case against the FCC, is arguing that these documents can no longer be legitimately withheld citing that “deliberative process.”
To start, as of Tuesday, the official position of the FCC is that the employees involved in numerous internal emails withheld were in actuality relaying false information. In other words, these are not frank discussions between federal employees on important policy matters, as the FCC previously claimed in court. What’s more, the topics of those conversations are now publicly known, meaning there’s no longer any interest served in keeping them secret.
(Disclosure: Attorney Dan Novack also represents Gizmodo pro bono in an ongoing lawsuit against the Federal Bureau of Investigation over records related to deceased Fox News founder Roger Ailes.)
The IG report also revealed that emails between senior FCC officials concerning the cyberattack claims were not among those turned over to Collier and others who have sued the agency over the release of documents. The commission simply never acknowledged the emails existed.
Several Democratic lawmakers insisted that all of the commission’s internal emails about the fake attack should be made public. “It appears the FCC withheld these records in an attempt at damage control,” said Rep. Dingell, “but Congress has a constitutional duty to conduct fair and thorough oversight, and we will do just that.”
On Wednesday, Novack emailed the assistant U.S. attorney representing the FCC in New York to say that he is considering writing the court “unless a compelling reason is offered” that explains why the documents were missing—a warning that he may ask the judge to sanction the FCC for failing to comply with the law.
“We’re going to war,” Novack said in a text message on Friday.
If the commission is sanctioned, the judge may grant Novack the ability to seek discovery and even depose agency officials under oath. The judge could also toss out the FCC’s previous defense arguments. Adam Marshall, an attorney at the Reporters Committee for Freedom of the Press, said that, while extremely rare, the most common situations warranting discovery are cases in which evidence is presented that the government acted in bad faith.
“Courts have recognized a ‘government misconduct’ exception to the deliberative process privilege in FOIA cases,” Marshall said. “In essence, this exception to the exemption relies on the theory that there is no legitimate interest in shielding deliberations about government wrongdoing.”
The FCC did not respond to multiple requests for comment about the ongoing lawsuit; why Pai has yet to contact the lawmakers his office misled; or whether the commission intends to address the false information it provided to numerous reporters. Asked by email when precisely Pai knew his office had fed false information to Congress, the FCC likewise did not respond.
Since May, the FCC has ignored at least a dozen questions from Gizmodo and has not responded to any inquiries related to the cyberattacks it made up.
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