Congress Should Take Steps to Protect the Independence of Inspectors General

In the aftermath of President Donald Trump’s assault on the federal government’s internal watchdogs — the Inspector General (IG) community — Congress should empower IGs with more authority to maintain their independence from the Trump administration as well as future presidents.

While the Trump era has been marred by political fights about oversight and corruption, the president’s latest attacks against the IG community invited swift bipartisan condemnation. Last week, eight Republican and Democratic senators wrote to the president demanding further explanation for his firing of Intelligence Community IG (ICIG) Michael Atkinson. Senator Chuck Grassley (R-Iowa), who led that effort, also raised concerns following Trump’s dismissal of Glenn Fine as acting Pentagon IG and recently named chair of the Pandemic Response Accountability Committee. As Congress considers another coronavirus stimulus bill, lawmakers also introduced legislation to bolster IG independence. These reforms should include more responsibility for and transparency from the Council of the Inspectors General on Integrity and Efficiency (CIGIE), which oversees IG and executive branch efficiency.

Without question, CIGIE should play a larger role in the selection of inspectors general. The IG Reform Act of 2008 requires that CIGIE recommend “individuals for consideration” as IGs to the “appropriate appointing authority.” CIGIE established a panel to identify and recommend qualified candidates. Unfortunately, the law does not require CIGIE to make these names publicly available. During my time as a Senate aide, CIGIE was invaluable to vetting IG nominees, but I often wished they could provide more information about their recommendation process and their assessment of the candidates.

Asking CIGIE to publicly report its recommendations for each IG vacancy would bring a new level of transparency to an otherwise closeted process. There is already a model for this process with the District of Columbia Judicial Nomination Commission, which recommends attorneys for the president to consider nominating to fill judicial vacancies on the D.C. Superior Court. In addition, Congress could require CIGE to make a public statement of support, deference, or disapproval regarding all IG nominees, thus providing a non-partisan assessment of candidates’ credentials and independence.

Given Trump’s hostility to independent IGs, Congress would be justified in taking more aggressive action, such as amending the IG Act to limit a president’s authority to appoint acting or permanent IGs. For example, requiring the president to provide notice when replacing a permanent or acting IG to Congress and having CIGIE vet their successor could have prevented the administration’s most recent attempts to install loyalists as acting IGs at the Education and Interior departments.

Under existing law, dozens of IGs are selected by agency heads rather than the president. Congress could require agency heads to appoint all IGs for a term of years after meaningful consultation with CIGIE. While agency heads are still political appointees, they are far more accountable to Congress than any president, making it more difficult for them to justify an IG vacancy or their selection of a partisan loyalist. While an attempt to curtail the president’s authority to appoint IGs would likely face a legal challenge from the administration, President Trump’s assault on independent oversight may be worth that fight.

Congress should also authorize CIGIE to play a role in the process of removing IGs. Currently, the president must provide Congress with 30 days notice and a written explanation before firing an IG. Congress is considering legislation with stricter standards, prohibiting early dismissal of IGs “unless they violate rules or laws, are incapacitated, are credibly accused of mismanagement or abuse their authority.” However, Congress could also amend the IG Act to require that the president consult with CIGIE before notifying Congress of any such removal. A slightly different approach would be to require CIGIE to review the allegations underlying a president’s stated grounds for dismissal and publicly report its findings before the 30-day window between notice and removal lapses. CIGIE’s Integrity Committee already investigates alleged misconduct by IGs, so this additional responsibility would be consistent with its existing authority. If Congress extended the notice period for removing an IG to 60 or even 90 days, it could improve this process.

Congress must also address the loopholes that allowed Trump to place ICIG Atkinson on immediate leave, and to dismiss Fine without notice. Disciplinary action against an IG should trigger an automatic review by CIGIE’s integrity committee to verify allegations of wrongdoing. The removal of any acting IG should also require notice to Congress; there is no reason why our elected representatives should learn about the dismissal of these government watchdogs via press release or tweet.

Trump is not the first president to face scrutiny for removing an inspector general. But his failure to appoint IGs, and his attacks on those who assert their independence, demand a strong response from Congress. CIGIE was created to support and strengthen the IG community. Now, amidst an unprecedented crisis, and in order to prevent future ones, Congress must give CIGIE the authority to do more.

Image: Michael Atkinson, Inspector General of the Intelligence Community, leaves the U.S. Capitol October 4, 2019 in Washington, DC. Photo by Win McNamee/Getty Images

 

About the Author(s)

Donald K. Sherman

Deputy Director at Citizens for Responsibility and Ethics in Washington (CREW); Adjunct Professor of Law at the Georgetown University Law Center. Follow him on Twitter (@donaldonethics).