'I'm By Nature Suspicious': Meet Brian Miller, Trump's Pick for Pandemic Watchdog
The nomination of a White House lawyer drew raised eyebrows from Democrats. But the veteran government official has a record speaking out for inspector generals' independence and access to information.
April 06, 2020 at 10:58 AM
8 minute read
The original version of this story was published on National Law Journal
Brian Miller, a Trump White House lawyer since 2018 and former in-house watchdog at the General Services Administration, will encounter myriad questions about his independence and career in the law when he faces the U.S. Senate for his confirmation as special inspector general for pandemic recovery.
The White House announced Miller's nomination Friday night, and it was not immediately clear when the Senate might hold a confirmation hearing. The special inspector general, with a budget of $25 million, was created as part of the stimulus package Congress passed in response to the coronavirus outbreak, a global health emergency that has claimed thousands of lives and upended everyday life.
Miller brings a long career in Washington legal circles, having served as a federal prosecutor, inspector general and private practitioner at the Washington litigation boutique Rogers Joseph O'Donnell. But his latest role, as a Trump White House lawyer, has already invited questions about his independence and ability to aggressively oversee the use of pandemic relief funds.
If confirmed by the Senate, he would be responsible for leading "audits and investigations of the making, purchase, management and sale of loans, loan guarantees, and other investments" by the Treasury Department.
Senate Democrats are expected to question Miller about his independence from the White House. That refrain was echoed across social media over the weekend. "No one who has served in this [White House] or any [White House] should be eligible to serve in this role. The job requires complete independence from politics. This nomination should be dead on arrival," Michael Bromwich, a Steptoe & Johnson senior counsel and former Justice Department inspector general said.
Miller has spoken extensively about his service as the GSA inspector general from 2005 to 2014. "Congress should remember that IGs are not tame watchdogs, and they may bite members of Congress as well as executive branch officials," Miller wrote in August 2018 at The Hill. "They may also be a danger to themselves, to the normal functioning of government, and to Congress."
Last year in an interview at Patrick Henry College, Miller said in response to a question: "I'm by nature suspicious—and especially suspicious of people who may be trying to benefit personally from a government program instead of doing what's right for taxpayers and for the American public," Miller said. "We should always be suspicious of that."
What follows is a snapshot of Miller's career in the law:
>> Miller has spoken out about the need for inspectors general to have independence—and access to information. In 2015, the Justice Department's Office of Legal Counsel issued an opinion blessing the FBI's decision to limit the inspector general's access to sensitive records. The opinion drew an uproar from Congress, prompting the Senate Judiciary Committee to convene a hearing. Miller, who was then a managing director at Navigant Consulting, said the opinion could have "devastating" results. "It's going to make IGs' jobs much more difficult," he testified.
"In order to have effective oversight, an IG must have independence to conduct an investigation, review or audit. This includes determining what information is needed. It is the judgment of the IG conducting the investigation that matters, not the judgment of the agency being investigated," Miller said at the time. "The OLC opinion reverses that process and makes the judgment of the agency being investigated control the judgment of the IG. That's exactly backwards. To deny the IG information that is needed to reach a conclusion or a finding is misguided. It's like trying to build a bridge halfway over a river and saying you can't have the rest of the material. It just doesn't work. It's disastrous. The IG must have all the information to make an accurate conclusion and finding."
>> Miller joined the White House counsel's office in December 2018 from the Washington litigation boutique Rogers Joseph O'Donnell. At the White House, Miller, senior associate counsel to the president, reportedly was part of the team defending Trump in the House impeachment proceedings. The Washington Post reported over the weekend: "Two people familiar with Miller's work in the White House Counsel's Office said he was a mid-level member of the office's larger effort to rebut unflattering claims from impeachment witnesses and raise doubts about allegations that White House officials were concerned about Trump's call with Ukraine's President Volodymyr Zelensky. Miller, the people said, encouraged White House allies to spread the word, without clear evidence, that changes to a word-for-word transcription to create a memorandum of the Trump-Zelensky call were factually insignificant." Miller had been earning $145,000 annually at the White House. At Rogers Joseph O'Donnell, Miller represented clients in civil and criminal matters and conducted internal investigations, in addition to handling regulatory and contract compliance reviews.
>> Miller appeared on the PBS program "Antiques Roadshow." In a brief segment, he discussed the GSA's efforts to recover government-owned artwork commissioned during the Great Depression. "Tens of thousands of pieces of art were created. We know where some are, we don't know where others are. As a federal building was demolished or a federal agency moved out of a building, these pieces were mislaid. During the '60s and '70s, the General Services Administration was charged with the respect of being the custodian of this art." Miller said the GSA had added 130 paintings to the FBI's database of lost and stolen art—"and we are tracking these paintings down. The American taxpayer paid for this art, and we are recovering American art for America."
>> Miller's law degree is from the University of Texas School of Law, and he also holds a Master of Arts from Westminster Theological Seminary. In a May 2019 interview at Patrick Henry College in Virginia, he was asked about the connection between theology and inspector general practice. "At the most basic level, we serve the Lord. We want to follow the law. We want to follow what he prescribes," Miller said. "So we're generally against lying, cheating and stealing. It's not biblical it's, you know, displeases the lord. And so we do want to please him and everything that we do. And so I think that is a good background—people have to be of good character to be an inspector general, to work in an Office of Inspector General inspectors general. They have to want to follow the law. I think that mindset helps to, you know, look at whether or not an organization, or an individual, is actually following the law as it's written. All that helps."
>> As an assistant U.S. attorney in Virginia, Miller helped defend former Attorney General John Ashcroft against lawsuits over the treatment of detainees rounded up after the Sept. 11 attacks. Miller was on the Justice Department team that defended Ashcroft in 2004, two years after the former attorney general and Robert Mueller III, then the FBI director, were named in a civil rights lawsuit filed in Brooklyn federal district court. In 2017, the Supreme Court ruled that the case could not proceed, reversing a decision from the U.S. Court of Appeals for the Second Circuit. Miller was an AUSA in Virginia from 1993 to 2005.
>> In 2010, Miller investigated a lavish GSA conference in Las Vegas. He gained some notoriety in the investigation and asked the Justice Department to launch a criminal investigation into the organizer of the training conference, Jeffrey Neely, who was ultimately convicted and sentenced to three months in prison. Miller has had plenty to say about the investigation ever since. In an interview last year, Miller recalled his investigation into the GSA's spending. "We investigated a conference the GSA had in Las Vegas in 2010. Millions of dollars, little value, except as an opportunity for GSA officials to encourage one another. They had, for example, a contest as to who had a lot of talent. GSA officials on GSA government time were singing, and the first-place song bragged about never being under investigation. The irony: They were under investigation and didn't know it."
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