To Protect Independence of Inspectors General, Make Them Part of Congress

Posted in: Politics

The unsurprising news reported in The Washington Post that the Trump administration hindered and delayed investigations by inspectors general (IGs) will increase calls for new protections against improper political interference by future presidents and political appointees. The discussion of how to harden IGs’ independence leaves an obvious question unasked, however: Why are IGs in the executive branch in the first place?

IGs are meant to be chaperones within the executive branch of government to prevent abuse of power, corruption, and garden-variety incompetence. IGs can also provide performance audits to suggest changes to agency programs and operations. The statute requires that the President appoint IGs “without regard to political affiliation and solely on the basis of integrity and demonstrated ability” and forbids political interference in IG investigations.

IGs provide regular reports to the agency head and to designated committees of Congress, and report “immediately” to the agency head when the IG “becomes aware of particularly flagrant problems, abuses or deficiencies.” The statute requires that the agency head transmit IG reports of flagrant problems promptly to Congress.

Last year President Trump fired five IGs in whom Trump had “lost confidence.” Trump’s purge started with Michael Atkinson, the IG for the intelligence community. The White House and Barr’s Department of Justice ordered Atkinson not to disclose the whistleblower’s complaint about Trump’s call with the President of Ukraine as an exercise of “presidential supervision.” Atkinson advised Congress of the complaint anyway. The complaint resulted in Trump’s first impeachment.

Other purged IGs contradicted patently false public statements by Trump, or began investigations into misconduct within the administration.

The nine instances of interference newly reported by The Washington Post are more of the same. The administration hindered and delayed an IG investigation into whether the White House blocked relief to Puerto Rico for the catastrophic damage from Hurricane Maria to punish Puerto Rico’s political leaders for their criticism of Trump.

The IG for the Department of Transportation referred possible criminal charges against Secretary Elaine Chao, wife of Senate Republican leader Mitch McConnell, to the Department of Justice. The referral was based on evidence that Chao improperly used her office for her and her father’s personal business. Chao’s father is a shipping magnate. The U.S. Attorney and the Justice Department both immediately declined to investigate.

The investigation of “Sharpiegate,” and the conduct under investigation, was comically childish. Trump told reporters that Alabama was one of the states endangered by the projected path of Hurricane Dorian, when the official forecast showed that the hurricane would move north along the east coast, nowhere near Alabama. Trump was never immersed in the details of governance and his statement about the hurricane’s projected path was widely ridiculed as clueless. In response, Trump showed a map of the hurricane’s projected path that had obviously been altered by a Sharpie, Trump’s preferred writing instrument. The Sharpie-altered map showed that the storm’s path included Alabama. More ridicule followed. The National Oceanographic and Atmospheric Administration (NOAA) then issued a statement that the projected path included Alabama after all, despite previous official forecasts to the contrary. The IG’s investigation showed that NOAA’s statement was entirely the product of political pressure.

Trump’s critics—like me–see his interference in IG investigations as abuse of power, a Viktor Orban-like attack on legal constraints, and obvious violation of the IG statute. For Trump and his allies, however, Trump acted under claim of right. Trump claimed absolute power to remove any official of the executive branch who displeased him for any reason, and to appoint whomever he pleased to positions in the executive branch, despite any qualifications required by statute, subject only to Senate confirmation. Trump claimed the power to approve any IG report to Congress as part of “presidential supervision” of the executive branch, despite statutory requirements that IG reports go directly to Congress.

Trump’s Attorney General, William Barr, and other rightists have argued for decades for expansive presidential power, at least when the President is Republican and Congress is Democratic. Barr argued at the beginning of the George H.W. Bush administration that “concurrent reporting requirements”—an obvious reference to the IG laws enacted as post-Watergate reforms—are an unconstitutional “legislative encroachment on executive branch authority.” According to Barr, the President should ignore any statutory requirement of a direct report to Congress except “final” reports “that have been reviewed and approved by appropriate superiors within the executive branch, including…if necessary, the President.”

Future Republican Presidents will almost certainly make the same claims of executive power.

There is little support in law or logic for the canonical significance that Barr and other rightists claim for the assignment of IGs to the executive branch, however. It is doubtful that Congress had ever heard of the “unitary executive” theory, the overarching rightist justification for maximal claims of presidential powers, when it enacted the first IG statute in 1978. Congress provided that IGs would straddle the executive and legislative branches and report to both. The statutory design was almost certainly practical, not doctrinal, but Barr and others on the right now regard that straddle as desecration of the Constitution.

If IGs need to be in entirely one branch or the other, whether for legal or practical reasons, the legislative branch is their natural home.

The work of IGs can be helpful to the administration, or would be in an administration that cared about governance. But the job of IGs is not inherently the work of the executive branch. The courts have defined the inherent functions of the executive branch, the functions that Congress cannot constitutionally strip from the President, in a straightforward way: the executive branch executes laws.

IGs do not execute laws. IGs identify mismanagement, detect fraud and abuse, and recommend corrective actions for deficiencies or problems as well as ways to manage the government more efficiently and effectively.

In short, the job of IGs is oversight of the executive branch. Oversight of the executive branch is a legislative function.

Congress can enact legislation to move IGs—with the same duties and powers and the same offices, employees, equipment, and budget—from the executive branch to the legislative branch. IGs would effectively be an extension of the Government Accountability Office, a legislative branch agency.

Trump would never have signed that legislation, but President Biden might to restore the constitutional checks and balances.

Future administrations will only grudgingly cooperate in IG audits or investigations that might result in embarrassment regardless of the branch of government in which IGs are located, just as future administrations will only grudgingly cooperate in congressional oversight. That would not change. But the President would be unable to fire or threaten to fire a meddlesome IG if the IG worked for Congress rather than the President. And IGs would not keep quiet if political appointees try to squelch their investigations. We would not have to wait for a change of administration to learn of corruption or abuses of power uncovered by IG investigations.

That change in law—to move IGs to the legislative branch—seems small and legalistic in view of the threat our democracy has recently faced and still faces. It is not enough. But we need all the guardrails that we can devise.

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