Senator Tells DHS “Disinformation” Board May Be Illegal, Pending Vote

WASHINGTON — The Biden administration’s new disinformation governance board could be illegal and subject to a vote in Congress, a Republican senator has warned Homeland Security Secretary Alejandro Mayorkas.

In a letter to Mayorka’s Monday, Sen. Bill Hagerty (R-Tenn.) outlined a legal critique that could set the board’s demise in motion — as the White House sought to quell public concern over the Big Brother-like body and its controversies suppress head who has their own past of spreading disinformation.

Hagerty wrote that the board may be in violation of the Antideficiency Act, which says the executive branch cannot issue money unless Congress authorizes it, and that its formation could also be subject to the Congressional Review Act.

“This DHS Disinformation Governance Board, which places significant constraints on the bedrock of American values ​​and freedoms and imposes new costs on the American people, clearly requires congressional review and may constitute a violation of the Antideficiency Act,” Hagerty wrote.

The body – likened to an Orwellian “Ministry of Truth” by Republicans, as well as some left and libertarian critics – was announced last week, shortly after billionaire Elon Musk inked a deal to buy Twitter to help reform free speech and implement against censorship.

The panel would be chaired by Nina Jankowicz — a disinformation expert who has repeatedly cast doubt on the Post’s coverage of documents from Hunter Biden’s laptop, which the Washington Post and New York Times belatedly verified. She’s also come under fire for her own social media posts, including a TikTok in which she jokes about free speech and fake news in a parody of the Mary Poppins classic Supercalifragilisticexpialidocious.

“Establishing this body will have a significant impact on Americans’ right to freedom of expression and will have repercussions in many areas of government and society,” Hagerty wrote to Mayorkas. “It will transform the relationship between government and the governed to whom it is accountable. It will also significantly increase administrative costs for the number of different federal agencies involved in this effort, which will impose higher costs on the American taxpayer.”

Hagerty wrote that the Congressional Review Act, which allows Congress to repeal regulations with a bare majority in each chamber, offers a potential way to kill the board. Democrats currently have a slim lead in the House and Senate, and Republicans are favored to retake control next year.

“According to the CRA, an administrative action that falls within the definition of a ‘rule’ must be submitted to Congress for review before it can become effective,” he wrote. “[T]The CRA defines a rule as: “An agency’s statement, in whole or in part, of general or specific application and prospective effect, intended to implement, interpret or prescribe any law or policy, or requirements of an agency’s organization, procedure or practice to describe. ‘”

According to the senator’s office, if an agency fails to notify Congress of such a rule, a member of Congress can ask the Government Accountability Office to make a decision. If GAO says it’s a rule, Congress has a say under the Review Act.

“Furthermore, this action may also be in direct violation of the provisions of the Antideficiency Act,” Hagerty added, “which prohibits making or authorizing, or creating or authorizing any obligation therefrom, expenditure in excess of the amount set forth in of the allocation or available in the fund, except where permitted by law.’”

“In this case, it appears that the amount available for this action is ‘none’ and that Congress specifically defined it just a few weeks ago,” he continued.

“Section 513 of Division F of the Omnibus Appropriations Act for Fiscal Year 2022 (PL 117-103) specifically prohibits the Secretary of Homeland Security from using funds provided by Congress to implement Section 872 of the Homeland Security Act of 2002, which means any action to “Assigning or reallocating functions among Department of Homeland Security officials or to establish, consolidate, or change organizational units within the Department of Homeland Security.”

“As you know, any officer or employee, including you, who violates the Antideficiency Act must be subject to reasonable administrative discipline and face a fine, jail time, or both for willful violations,” Hagerty continued.

The letter asks Mayorkas to confirm that he will make the board reviewable under the Congressional Review Act and will notify the White House Budget Office if DHS has violated the Antideficiency Act.

White House press secretary Jen Psaki insisted Monday that the board, whose charges remain ill-defined, will merely continue anti-disinformation work ongoing during the Trump administration. She highlighted the work of the Cybersecurity and Infrastructure Security Agency. Then-President Donald Trump fired CISA Director Chris Krebs in November 2020 for contradicting his allegations of voter fraud.

“It is a continuation of the work done by CISA through 2020,” Psaki said. “So this would help continue this work and it would help coordinate internal activities of the department related to disinformation that poses a threat to the homeland.” So you gave some examples there – of terrorist threats, of course, but also, you know, what’s different from the work the smugglers do to spread disinformation.

“The mandate is not to decide what is true or false, online or otherwise. It will act in a non-partisan and non-political manner. It’s basically meant to coordinate a lot of the ongoing work,” Psaki said.

“The focus is on disinformation that threatens the homeland — as I’ve noted, that’s stuff like stuff that would incite violent extremism, you know, human traffickers and other transnational criminal organizations, all efforts at malicious foreign influence, anything Would endanger individuals during emergencies. So a lot of this work is really about work that people might not see every day, done by the Department of Homeland Security.”

The Department of Homeland Security and the Justice Department did not immediately respond to the Post’s requests for comment on Hagerty’s letter.