Activists protest against Warren B. Kanders outside the ex-vice chairman of the board’s Manhattan residence on May 17, 2019, the opening of the Whitney Biennial. Photo: Lauren Cavalli.

Former US Federal Prosecutor Wants Whitney Stripped of Tax-Exempt Status

Neal M. Sher, a former director of the United States Justice Department’s Office of Special Investigations who spent years tracking down and deporting suspected Nazi war criminals in the 1980s and ’90s, is calling for New York’s Whitney Museum of American Art to be stripped of its tax-exempt status over its alleged mishandling of a recent campaign to unseat Warren B. Kanders, its ex–vice chairman of the board. Kanders, the CEO of Safariland, a defense company that manufactures tear gas and other military equipment, stepped down last July following months of protests.

According to the Financial Times, Sher, a lawyer who also previously served as head of the lobbying group American Israel Public Affairs Committee, sent a letter of complaint against the Whitney to the Internal Revenue Service (IRS) earlier this month, accusing director Adam Weinberg and museum management of being involved in a “concerted smear campaign.” The letter, which Sher claims to have written “on behalf of contributors to and former officials of” the institution, asserts that the Whitney’s 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.”

The document describes those who participated in the protests—members of various activist groups, including Decolonize This Place, Art Space Sanctuary, Chinatown Art Brigade, and Within Our Lifetime—as “provocateurs who had a political agenda that had nothing to do with the mission of the Whitney.” It also points to the Whitney’s payment to art collective Forensic Architecture—whose video Triple Chaser was featured in the 2019 Whitney Biennial and directly addressed Kanders’s alleged connections to human rights abuses—as evidence that the Whitney “financed the work of a political and campaigning organization.” The Whitney paid all of the artists who participated in its biennial $1,500, the artist fee suggested by the nonprofit advocacy organization W.A.G.E.

The letter continues: “Unless the IRS makes clear that similar behavior by leaders and staff will jeopardize the tax-exempt status of their institution, there undoubtedly will be comparable campaigns by political ‘activists’ against other targets.” Sher stressed that his motivations aren’t to cause lasting damage to the museum. In an additional letter, which was sent to several trustees, he clarified that he wants “assurances that the museum will faithfully adhere to its charitable purpose and not be used as a tool by others to advance renegade agendas.”

The Whitney, which declined Artforum’s request for comment, is one of several museums that have recently been targeted by activists calling for wealthy donors and trustees to be dumped over their alleged controversial business dealings or professional connections. Earlier this year, the Museum of Modern Art in New York also faced protests against members of its board, and several institutions were forced to answer for their ties to the Sacklers as the family’s role in the opioid epidemic became the subject of thousands of lawsuits last year.

While the IRS has the power to take away tax-exempt status from institutions for numerous reasons—such as an organization’s failure to file its annual tax returns for three consecutive years—such a sanction would be a harsh blow to the Whitney, which is already struggling with major losses due to the coronavirus pandemic. The institution expects to lose at least $7 million in revenue because of its temporary closure as part of New York’s attempt to stem the spread of the virus, and the museum likely won’t reopen before July.

Sher, who currently works in a private practice in New York, was disbarred by consent from practicing law in the District of Columbia following allegations, reported in the Baltimore Sun in 2002, that he misappropriated funds while serving as chief of the International Commission on Holocaust Era Insurance Claims. He eventually restituted more than $106,000. He has also previously worked as a special advisor to the Attorney General of Canada and has taught at a number of colleges and universities, including Cornell University, George Washington University, and Queens College.

In response to Sher’s decision to cite Forensic Architecture’s artist fee in his letter, the London-based collective’s founder, Eyal Weizman, told Hyperallergic that the statement was 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. 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.”