In IRS Complaint, Attorney Accuses Whitney Museum of “Smear Campaign” Against Warren Kanders

A protest against Warren Kanders outside the Whitney Museum in 2019 (photo by the author for Hyperallergic)

A New York attorney is acting to revoke the Whitney Museum’s nonprofit tax-exempt status on grounds that the museum allegedly “orchestrated and acquiesced in a concerted smear campaign” against its former vice chairman, Warren B. Kanders. Neal Sher, formerly the head of the Office of Special Investigations — the Justice Department’s Nazi prosecution unit — and the executive director of the American Israel Public Affairs Committee (AIPAC), has filed a complaint to the Internal Revenue Service (IRS) in a letter obtained by Hyperallergic.

The letter, signed by Sher on May 8, proclaims to be on behalf of “contributors to and former officials of the Whitney Museum of American Art.” It was sent together with a required IRS Form 13909, a document for whistleblowers wishing to report tax-exempt abuses.

Sher’s complaint accuses the Whitney’s leadership of being complicit in “unlawful conduct, harassment, threats and intimidation” against Kanders.

Kanders resigned as vice chairman of the Whitney’s board last summer after months of demonstrations by a coalition of grassroots organizations that was led by the activist group Decolonize This Place (DTP). The protests against Kanders and the Whitney followed a Hyperallergic report in November of 2018 revealing the use of tear gas produced by Kanders’s company, Safariland Group, against asylum seekers at the US-Mexico border. Days later, a group of more than 100 Whitney staffers penned a letter asking the museum’s leadership to respond to the allegations made in the article. The letter was followed by large demonstrations by the activists, culminating in a series of protests, “Nine Weeks of Art and Action,” leading up to the opening of the Whitney Biennial in May 2019. The protests were followed by the withdrawal of eight artists from the exhibition.

“Led by Robert Hurst of the Board of Trustees, officers and a sizeable number of staff members — supported by the Director, Adam Weinberg — knowingly engaged in conduct which was flagrantly at odds with the Whitney’s charitable purpose,” Sher wrote in his letter. “Specifically, they orchestrated and acquiesced in a concerted smear campaign against Warren Kanders, a distinguished member of the Board, in order to advance a transparently political agenda which had no relevance whatsoever to the museum’s charitable purpose.”

“The Board members and staff involved were well aware of, and actively participated in, such ultra vires behavior,” the complaint says. “Breaching the duty owed to the museum, the Board legitimized, endorsed and capitulated to
unlawful and illicit conduct and pressured Mr. Kanders to resign. In so doing, they disqualified the Whitney from enjoying tax-exempt status.”

Neither the IRS nor the Whitney Museum have responded to Hyperallergic’s request for comment.

During the final protest for Nine Weeks of Art and Action, roughly 150 protesters marched through the streets of Manhattan from the Whitney Museum to the townhouse of Warren B. Kanders (photo by Hrag Vartanian for Hyperallergic)

In an interview with the Financial Times published today, May 18, Sher said that the IRS has not yet responded to his request. When asked by the newspaper about his motivation to target the museum’s tax status, he said, “I’ve been around long enough to know that in order to get things done you have to know where to appropriately apply pressure.” He has not responded to Hyperallergic’s requests for comment.

Sher told the Times that he sent another letter this weekend to members of the museum’s board of trustees. “The silence from the Whitney is deafening,” he wrote in the letter, according to the article. “The art-going public and donors deserve an explanation as well as assurances that the museum will faithfully adhere to its charitable purpose and not be used as a tool by others to advance renegade agendas.”

Although Kanders left the museum on seemingly sour terms (his response to the protests was first published on the Financial Times), a spokesperson on his behalf clarified in an email to Hyperallergic that the former trustee “has no knowledge or involvement” with Sher’s complaint against the Whitney.

Sher has a complicated record as a lawyer and a public servant. The Forward reports that in 2003, he was disbarred by consent from the District of Columbia after a 2002 report in the Baltimore Sun found that he allegedly misappropriated funds for personal use while serving as chief of staff in the Washington office of the International Commission on Holocaust Era Insurance Claims between 1998-2002. In an investigation by the commission, Sher admitted to deliberately inflating air travel expenses, retaining more than $106,000 in funds. He restituted the full amount and agreed to disbarment before a District of Columbia Court of Appeals in 2003 to “avoid the adverse publicity.” In a later interview with the Forward, he said he agreed to disbarment because he could not afford to litigate his case. Sher continues to be registered as a member of the New York bar after a period of disciplinary suspension between March of 2005 and May of 2006.

Sher accuses the Whitney’s leadership of being complicit in “unlawful conduct, harassment, threats and intimidation” against Kanders (photo by the author for Hyperallergic)

Sher’s complaint specifically targets DTP organizer Amin Husain as the “chief agitator and ringleader” of the protests against Kanders.

“Whitney leadership undoubtedly was aware of his widely publicized reputation as an aggressive political provocateur, who proudly engaged in disruptive and illegal conduct to further his causes,” the complaint says. “Rather than protecting the integrity of the Whitney’s raison d’être — which is the
basis for its charitable status — museum leadership appeased Husain and his band of followers, empowered his unlawful methods and capitulated to his demands.”

In an emailed comment to Hyperallergic, DTP said, “When we read the letter, we first thought it was by the Yes Men. We read the letter again and we still think it’s the Yes Men.”

Sher claims in his letter that the “relationship” between Husain and the Whitney is being investigated by the Federal Bureau of Investigation (FBI). In one appendix to his letter, Sher attached a translated transcript of a talk in Arabic that was conducted with Husain at the Khalil Sakakini Cultural Center in Ramallah in July of 2019. The conversation was streamed live on Facebook.

Sher has also included press clips that focus on Husain’s role in the protests. In March, Hyperallergic reported that the activist has been uniquely targeted by right-wing media outlets like the New York Post, Fox News, the Daily Caller, Breitbart, and the Jerusalem Post. In a blog post published on Verso’s website, MTL+ collective (the activist group facilitating the work of DTP) called these articles “a coordinated campaign by the right-wing media and the NYPD” against DTP and an attempt to “demonize and discredit recent actions around the MTA by reducing them to the figurehead of a ‘violent’ Palestinian mastermind.”

Sher’s complaint goes on to target the acclaimed London-based research group Forensic Architecture (FA), whose submission for the 2019 Whitney Biennial, “Triple-Chaser Grenades” (2019), featured an investigation into the use of tear gas and bullets manufactured by companies led by Kanders. FA withdrew from the exhibition in July of 2019 after reporting that it found new evidence that directly links Kanders’s companies to attacks against Palestinians on the Gaza border.

Eyal Weizman of Forensic Architecture (courtesy Forensic Architecture)

“Forensic Architecture’s (the Group whose Triple Chaser installation is the lightening [sic] rod in question) founder and leader, Eyal Weizman was recently denied a visa to enter the United States,” Sher wrote, referring to the revocation of Weizman’s visa-waiver (ESTA) to the United States in February.

“Indeed, most concerningly, the Whitney Museum paid Forensic Architecture for its installation, meaning the Whitney has directly financed the work of a political and campaigning organization.”

In a conversation with Hyperallergic, Weizman called Sher’s complaint a “ludicrous, baseless letter sent by a disbarred lawyer.”

“This is a massive escalation by a person connected to the pro-Israel lobby, which has been previously targeting activists and university students, and now seeks to target institutions that are at the core of cultural production,” Weizman added. “It is the role and duty of cultural producers to respond to the world we live in. Opposition to institutional and larger politics is the oxygen of contemporary culture. So it seems to me that this letter is an attempt to stifle such cultural production and critique, and intimidate artists, institutions, or researchers like us.”

Weizman, an Israeli citizen, went on to express his solidarity with Husain in the face of the continuous attacks against the activist.

“As somebody who has been closely researching the surveillance and domination of Palestinians, I’m extremely concerned that a Palestinian activist and public intellectual like Amin Husain is being so closely monitored to the extent that a talk he gives at a community organization in Ramallah is being transcribed.”