David Kessler, co-chair of Joseph Biden’s COVID-19 task force, and a leading candidate to be his Health and Human Services (HHS) Secretary, resigned as President Clinton’s Food and Drug Administration (FDA) Commissioner in late November 1996 (after Clinton’s re-election) amid controversy for overbilling his travel expenses during his tenure and shortly after a court upheld a subpoena for his deposition in a major FDA case.
The National Legal and Policy Center (NLPC), which led the investigation into Kessler’s travel expenses when Kessler was FDA Commissioner, is calling upon Joe Biden to dismiss Kessler from his COVID task force and remove him from consideration for HHS Secretary.
NLPC’s investigation included hundreds of FOIA requests for Kessler’s travel vouchers and itineraries over a five-year period that were turned over to the House of Representatives Oversight Subcommittee of the Commerce Committee at the time, which launched an investigation, including a referral to the General Accounting Office.
Reports about NLPC’s investigation stated, “A hotel room here. Dozens of excessive cab fares there. A government-discount plane ticket for the wife. For five years, Food and Drug Administration chief David Kessler submitted expense accounts riddled with nickel-and-dime overcharges in his favor, a review of records shows.”
Kessler’s travel records showed that he was reimbursed for $5,732 for cab fares for which he had no receipts. Many of the fares were far in excess of actual costs – in some cases two or three times. For example, Kessler billed taxpayers $25 for a cab ride from his hotel (where a conference took place) to the airport across the street even though the hotel offered free shuttle service.
Kessler also misused his government credit card to purchase his wife a government-discounted plane ticket to join him for a night at New York’s luxury Waldorf-Astoria Hotel during an official trip in December 1992.
In all of these cases, Kessler conveniently blamed his staff for the errors, but his explanations don’t add up. For example, Jim O’Hara, his spokesman at the time, said Kessler “was told by his staff that he did not need receipts for cab fares of more than $25, even though they were actually required.”[1] But why would Kessler think that receipts for cab fares over $25 were not required, but fares under $25 were required?
In his 2002 memoir, A Question of Intent: A Great American Battle With A Deadly Industry Kessler gave yet another explanation of his travel overbilling. On pages 343-344 he claims he gave blank receipts to his staff and they estimated the taxi fare and blaming NLPC for questioning his integrity, which he wrote “brought me as close to despair as I had ever been.”
On his way out the door at the end of 1996, Kessler reimbursed the government $850 for excessive cab fares, although a full investigation and audit by the House Oversight Committee was not completed.
The timing of his departure also allowed Kessler to escape a subpoena to sit for a deposition in a major FDA case that he vigorously fought on appeal but lost.
Kessler’s preference to use the heavy hand of government was on display when, as one of his first acts as FDA head, he ordered the seizure of 12,000 of gallons of perfectly good orange juice because “Citrus Hill Fresh Choice” used the word “fresh” in its name, allegedly misleading consumers to think it was freshly squeezed even though the label said it was made from concentrate.
“It’s clear that David Kessler’s effort to stage a come-back in government should be opposed because of his questionable past and his vain ambition to have government overregulate American society,” said NLPC Chairman Peter Flaherty.
“If he were in charge of the FDA, President’s Trump Project Warp Speed to develop the coronavirus vaccine would have come to a bureaucratic snail’s pace, while a nationwide shutdown would be ordered,” added Paul Kamenar, NLPC’s counsel, who is familiar with Kessler’s overbilling abuses and the successful legal challenge to his unlawful off-label regulations of FDA approved drugs.
UPDATE: After we published this press release, we received a letter from Dr. Kessler’s attorney claiming that the circumstances of his travel voucher overcharges recounted in the November 2, 1996, AP story which we excerpted and provided a link to should be retracted. He provided us with a two-page internal FDA document entitled “NOTE TO THE FILE” dated January 24, 1997, from the Deputy Commissioner of Management and Systems that summarized an audit and other reviews that blamed the numerous billing overcharges due to Dr. Kessler’s failure to obtain taxicab receipts on bad advice he received from his staff who autopenned his signature to the vouchers. Specifically, the internal document stated, “the result of this audit revealed no willful intent by the Commissioner or his staff to violate travel or other related regulations of the Agency.” Dr. Kessler’s denial of any intent to violate FDA travel regulations was also mentioned in the earlier AP story and, as NLPC noted in our release, he blamed his staff for the billing errors. We requested copies of the full audits and reviews that the document we were provided allegedly summarized, but we were denied this request. NLPC intends to obtain those documents via a Freedom of Information Act Request.