Note: The authors are co-founder and chief legal counsel, respectively, at WhistleblowerAid.org, which provides pro bono representation to public interest whistleblowers. They represented the whistleblower whose complaint led to President Trump’s first-term impeachment.
President Donald Trump’s choice to replace Kristi Noem at the Department of Homeland Security (DHS), Markwayne Mullin, the former junior senator from Oklahoma, was quickly confirmed by the Senate. He now leads a powerful institution in desperate need of reform.
In a normal administration, it would not be hard for Mullin to outperform Noem’s dismal tenure as DHS Secretary. After all, it was under Noem’s leadership that the Department unconstitutionally abandoned centuries-long Fourth Amendment precedent, authorizing searches of homes without judicial warrants. It was also under her leadership that Immigration and Customs Enforcement (ICE) drastically reduced its training requirements in order to meet unrealistic recruitment quotas, and sent unprepared ICE officers to conduct unprecedented—and violent—operations throughout the country.
The above revelations came to light thanks to brave whistleblowers who sought and received assistance from WhistleblowerAid.org to responsibly and lawfully speak out on illegal—and frankly, terrifying—acts and directives occurring at DHS. But Noem’s legacy will not just be about the countless acts of wrongdoing under her leadership; it will also center around the institutional changes she made at DHS that make uncovering and correcting that wrongdoing much more difficult.
Just before Noem’s firing, Joseph Cuffari, the Trump-appointed DHS Inspector General (IG) from the first administration, cited 11 instances in which the Department blocked his office from accessing records and information it needed to pursue its inquiries. Cuffari described the Department’s refusal to cooperate in criminal investigations with national security implications as being “particularly egregious.”
Cuffari’s revelations led to bipartisan calls for Noem to correct the Department’s course. Senator Thom Tillis (R-NC) grew incensed while questioning Noem at a committee hearing in early March. Senator Tammy Duckworth (D-IL) was likewise outraged several weeks earlier when she revealed that the DHS General Counsel had effectively threatened Cuffari with repeated “reminders” that then Secretary Noem was authorized to kill supposedly independent IG investigations.
Enter Secretary Mullin.
If Mullin is serious about doing his job well, then he should consider the following list of suggestions—a “to-do” list—based on information provided to the public by our clients:
1. Restore full independence and autonomy to the DHS Office of the Inspector General (OIG). Under Noem, the OIG was blocked from doing its job 11 times. And so, logically, the first and most important thing that Mullin can do is to let the OIG do its job and conduct independent oversight of the Department.
2. Listen to and support whistleblowers. Creating a culture where misconduct can easily be reported will help reduce the wrongdoing that has been plaguing DHS in the public image. If Mullin takes whistleblowers seriously, then he will listen to their concerns and address the problems they expose.
3. Restore and perhaps enhance the previous training curriculum for ICE cadets. According to our client, ICE whistleblower Ryan Schwank, ICE cut its training regimen for new recruits from the previously required 72 days to just 42 days, excising key parts of the curriculum focusing on firearms training, use of force, and ICE agents’ legal authority under the U.S. Constitution. At a minimum, the previous training requirements should be restored. But Mullin should also direct an audit of the training regimen, particularly given that the murders of Renee Good and Alex Pretti in Minneapolis were committed by officers who had passed the full 72-day training curriculum. Mullin can learn important lessons from a ruling earlier this month by Judge Gary R. Brown, a Trump appointee, who found “systemic” problems in ICE officers’ training and knowledge of the law.
4. Stop the searching of homes with no judicial warrant. The memo directing ICE agents to search homes with only an administrative warrant flies in the face of the Fourth Amendment, which protects Americans “against unreasonable searches and seizures.” Mullin should immediately issue a memo affirming that ICE officers will need a judicial warrant—signed by an independent Article III judge—to enter people’s homes without consent.
Ideally, Mullin should also ask Congress for support that extends beyond his duties as DHS Secretary – namely, to reverse the at-will designation of federal employees and create additional routes to Congress for members of the U.S. Intelligence Community.
At his confirmation hearing, Mullin said, “I will do everything required of me by law.” Perhaps Mullin meant that he will do the bare minimum. From a more optimistic perspective, he may have been tacitly acknowledging that DHS has departed from the law and therefore needs change. An even more optimistic reading of Mullin’s words is that he was inviting Congress to amend the law where it needs amending.
If the previous four steps are completed successfully, Mullin could help turn DHS—currently the poster child for the urgency of reform—into an example that other departments can and should follow.
Is Mullin—or anyone who would be in his position for that matter—going to accomplish everything on this to-do list? No. In fact, it is unfortunately doubtful he will check off any one item fully. But he must try his hardest to do so.
Noem failed spectacularly in executing her duties, and no one should be bullish about Mullin’s chances. After all, the Trump administration is waging a relentless campaign to slash and neuter accountability mechanisms and gaslight truth-tellers who put their careers and even their lives at risk to report wrongdoing.
Americans cannot and should not accept this as the new normal. Citizens and politicians must summon the strength to support whistleblowers and work toward accountability. That also means giving Mullin an opportunity to do the right thing and return DHS, at least in part, to a functioning and law-abiding professional organization.
