[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In these essays, leading experts explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information, you can read the Introduction by the series’ editors.]
Belief among high-ranking civilian and military leaders that the 19-year (and counting) war in Afghanistan was unwinnable. Orders permitting domestic communications surveillance under the Foreign Intelligence Surveillance Act approved despite “significant errors.” Horrifying conditions at immigration detention centers, including bed sheets braided into nooses hanging in 15 of 20 cells inspected; seriously inadequate medical care; and improper use of solitary confinement. “Widespread shortages” of personal protective equipment leaving hospital staff and patients at increased risk during the COVID-19 pandemic.
These seemingly disparate scandals have one common thread: they were brought to light by inspectors general (IGs), whose offices inside the federal government are tasked with rooting out waste, fraud, and abuse and making government agencies function more effectively. They also illustrate the crucial role that IGs play in policing the executive branch’s use of its authorities. Unfortunately, today’s IGs may be just as likely to find themselves out of a job for investigating and exposing malfeasance or waste in government as they are to have their findings used to effect policy change. With one simple reform — insulating IGs from removal absent good cause — Congress can reinvigorate the primary internal accountability framework of our executive branch.
The Problem
In the span of a few short months, President Trump fired or abruptly replaced the IGs (or acting IGs) of the Intelligence Community, the State Department, the Transportation Department, and the IG tapped to lead the newly created Pandemic Response Accountability Committee, an entity tasked with overseeing how the government spends the $2.2 trillion Congress approved for coronavirus relief. Despite repeated demands from members from both sides of the aisle, the President has not explained why he chose to remove these inspectors general beyond a terse statement that he “lost confidence” in their ability to do their jobs.
We should note that the Secretary of State did eventually testify in front of the House Foreign Affairs Committee that the president removed the State Department IG in part because the office required an extension for an annual audit and because of “low morale” in the office. The reasons given at the July 30th hearing appear blatantly pretextual, however, especially when you consider that the Secretary’s office itself had the lowest employee engagement score of any State Department subcomponent in the “Best Places to Work in the Federal Government” list. Additionally, Secretary Pompeo did not offer a justification for why this explanation came more than two months after the President removed the IG, when the law requires the President to explain to Congress the reasons for the removal 30 days before it goes into effect.
This lack of meaningful explanation is particularly troubling when you consider the work these IGs were engaged in to hold the powerful to account on behalf of the public just before their removal. The Intelligence Community IG received a whistleblower complaint that he determined to be both credible and of “urgent concern,” requiring its timely communication to Congress under the Intelligence Community Whistleblower Protection Act. Unfortunately for the IG, the complaint was about the President and resulted in the Chief Executive’s impeachment in the House of Representatives. The State Department IG was engaged in multiple investigations into the Secretary of State as well the Ambassador to the United Kingdom, a personal friend of the President. The Transportation Department watchdog confirmed that it had opened an investigation into whether Transportation Secretary Elaine Chao was improperly benefiting the state of Kentucky, which is represented by Chao’s husband, Senate Majority Leader Mitch McConnell. And, of course the head of the Pandemic Response Accountability Committee was poised to monitor the way the Trump Administration distributed billions of taxpayer dollars, spending that has already drawn sharp criticism.
After the President fired the Intelligence Community IG, a bipartisan group of eight Senators sent a letter to the White House noting that “Congress intended that Inspectors General only be removed when there is clear evidence of wrongdoing or failure to perform the duties of the office, and not for reasons unrelated to their performance, to help preserve IG independence.” Unfortunately, that intent is not codified in statute, so it offers little comfort to any IG worried about losing her job for doing it too well.
A Solution
Congress should help to ensure that IGs are able to work independently and insulate their offices from political or otherwise improper pressure by amending the law to specify that a President can only remove an IG for cause. Officials in many other positions requiring the “advice and consent” of the Senate already enjoy “for-cause” removal protection, such as the Special Counsel of the Office of Special Counsel, the Members and Chairman of Special Panel of the Merit Systems Protection Board, and the Inspector General of the U.S. Postal Service.
While the Supreme Court’s recent decision in Seila Law LLC v. Consumer Financial Protection Bureau struck down for-cause removal protections for the members of the CFPB, the Court’s analysis could support the constitutionality of granting those same protections to inspectors general. The structure, purpose, and authority of the CFPB director were all major factors in the Court’s decision, but in all three areas there are sharp contrasts between the CFPB director and inspectors general. Where the CFPB director reports directly to the President, IGs report both to Congress and the head of their agency – who is removable by the President without any limitation. Where the CFPB director enjoys “extensive rulemaking, enforcement, and adjudicatory powers,” inspectors general inspectors general do not have policymaking or broad administrative authorities, and their findings and recommendations are not binding on the agencies they oversee. These stark differences suggest that granting inspectors general for-cause removal protections would pass constitutional muster under the Court’s current jurisprudence.
These protections were initially included in the version of the 2008 Inspector General Reform Act that passed the House with overwhelmingly bipartisan support. When for-cause protections were dropped before final passage that bill, in part because of concerns around constitutionality, the impact of that decision quickly became clear. In early 2009, President Obama removed the IG of the Corporation for National and Community Service, Gerald Walpin. Obama’s initial explanation was simply that Walpin had lost the President’s confidence. Bipartisan demands for a more fulsome answer ultimately prompted Obama to give a more detailed explanation for his decision, but the incident set a troubling legal precedent that the initial meager explanation was sufficient to meet the president’s obligations under current law.
While consistent with that precedent, President Trump’s IG firing spree and corresponding brief explanations to Congress earlier this year sparked renewed interest in this issue. There are currently three pieces of legislation that would extend some form of “for-cause” removal protections to inspectors general, all of which the Project On Government Oversight supports. The following suggested legislative text incorporates some minor improvements to the original for-cause language included in the 2008 legislation.
Suggested legislative text:
The Inspector General Act of 1978, As Amended, (5 U.S.C. App.) is amended in subsection 3(b)—
by striking the period after the first sentence in that subsection and inserting the following before the beginning of the next sentence:
“prior to the expiration of their term only on any of the following grounds:
(1) Permanent incapacity.
(2) Neglect of duty.
(3) Malfeasance.
(4) Conviction of a felony or conduct involving moral turpitude.
(5) Knowing violation of a law or regulation.
(6) Gross mismanagement.
(7) Gross waste of funds; and
(8) Abuse of authority.”
Conclusion
This is not to suggest that IGs are infallible. It is essential that these offices are both genuinely independent and accountable. In order to properly balance powerful good cause removal protections, it will be important that Congress also strengthen and clarify the role of the existing accountability mechanism for the IGs themselves–the currently opaque Integrity Committee of the Counsel of Inspectors General on Integrity and Efficiency. Changes to the Committee’s operation should include, for example, a requirement that it report to Congress when it declines to investigate allegations of wrongdoing against IGs or their employees. That report should include an explanation of why the Committee chose to decline an investigation. Additionally, the Committee should complete investigations even if the subject leaves government service before the investigation is complete so that any misconduct is documented and so that meritless allegations cannot be unfairly used against that individual down the road.
Inspectors general that abuse public trust, retaliate against whistleblowers, or neglect their crucial missions, should, of course, not be allowed to continue in their roles. Importantly, a requirement to show cause before removing an inspector general preserves the right of any sitting president to remove an IG when they are ineffective or unwilling to conduct the rigorous oversight required of their office, while also ensuring that IGs are not removed in order to cover up abuses of authority or stymie rigorous oversight.
Congress created the system of inspectors general within executive branch agencies in1978 as part of its response to Watergate. Today, as in 1978, public trust in government is incredibly low. When asked to list the most important issues facing the country today, respondents in a recent poll ranked “political corruption” as more important than even the COVID-19 global pandemic. This isn’t an anomaly, but rather a trend, “corrupt government officials” has been a leading fear among Americans for years, topping the list since 2015. The work of independent IGs could help boost public confidence that corruption or abuse of power by government actors will be brought to light, setting the stage for corrupt actors to be held accountable.
Especially in this hyperpartisan age, we need independent, nonpartisan watchdogs empowered to go after political corruption and government waste. Strong, independent inspectors general have the potential to combat public cynicism and inject much needed accountability into the federal government. The current system, in which any IG can be fired for any reason—or for no reason at all—at any time, fails to live up to this potential. As nine former inspectors general recently wrote to Congress “Forcing inspectors general to choose between doing their jobs with integrity and keeping their positions is not an acceptable model of governance and oversight.”