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At the top of the list of those responsible for executive branch accountability in the 21st century are the statutory inspectors general who now populate every major executive branch agency. On Wednesday, Oct. 6, the Senate Committee on Homeland Security and Governmental Affairs will consider three bills—the Securing Inspector General Independence Act of 2021, the IG Testimonial Subpoena Authority Act and the IG Independence and Empowerment Act—that would expand the independence and power of inspectors general in important respects. This post reviews the central reforms, urges the passage of one of them and assesses the others.
Inspectors general are semi-independent watchdogs who conduct audits and investigations of executive branch actions and who have special reporting obligations to Congress. When the office was first created in 1978, inspectors general were constitutionally controversial. The Office of Legal Counsel opined that their divided obligations to the executive branch and Congress “violate the doctrine of separation of powers.” In 1998, a bipartisan panel of luminaries—including Howard Baker, Griffin Bell, Lloyd Cutler, William Barr, Andrew Card, Lawrence Eagleburger and William Webster—criticized inspectors general as “congressional ferrets of dubious constitutionality.” During Barr’s first tenure as attorney general from 1991 to 1993, he viewed the inspector general as a “constant irritant” and “tried to slap [their] wrists … and curtail their authority.” This was an unsurprising judgment since the inspector general is an affront to the unitary executive theory to which Barr subscribes.
Fast forward to Barr’s second stint as attorney general. In 2018, Barr stated that he had “become more sanguine” about the office of the inspector general, which serves a “critical function in the government.” When Justice Department Inspector General Michael Horowitz released his 2019 report on the investigation of the 2016 Trump presidential campaign, Barr publicly disagreed with Horowitz’s conclusion that the FBI properly opened the investigation. And yet Barr reaffirmed the legitimacy of the inspector general and his report, and he indeed confirmed the inspector general’s importance to the department. “The Inspector General’s investigation has provided critical transparency and accountability, and his work is a credit to the Department of Justice,” Barr said.
Barr was not puffing, as became clear when he relied on Horowitz to squirm out of the controversy that arose when former President Trump in 2020 fired Acting U.S. Attorney for the Southern District of New York Geoffrey Berman. Critics worried that Trump intervened to protect himself from ongoing criminal investigations. This concern grew when Barr tried to replace Berman with a Trump loyalist. In the face of intense controversy, Barr backed down and appointed a career prosecutor instead. And to further alleviate criticism, Barr stated that if any senior lawyer in the Southern District experienced “improper interference with a case,” he or she should report the matter to the Justice Department inspector general, whom Barr “authoriz[ed] to review any such claim”—a step Barr claimed would “provide additional confidence that all cases will continue to be decided on the law and the facts.”
Barr’s evolution from trying to curtail inspector general authority as a challenge to the unitary executive in the 1990s to expanding its authority to make the Justice Department’s prosecutorial judgments credible in 2020 is a testament to the central and accepted role that the office of inspector general plays today in securing executive branch accountability. Inspectors general are far from perfect, of course, and some of them sometimes make mistakes or go too far. But in numerous significant matters, they have effectively investigated controversial executive branch actions, clearly and fairly reported what happened, identified wrongdoing and exonerated those wrongly accused, made recommendations about how to improve the performance of the executive branch, and reported these matters to Congress and the public.
The three bills being considered tomorrow cover a range of issues. The main ones fall into three categories:
Two of the bills respond in different ways to the practice by past presidents—most notably, but not exclusively, Trump—of firing inspectors general on questionable grounds and replacing them with more congenial but less independent officials who lack Senate confirmation.
The president runs the executive branch and sometimes has good reasons to terminate an inspector general—for incompetence, malfeasance and the like. Current law allows the president to do so for any reason but requires the president to send a letter to Congress 30 days before removal that explains the reason. This has not proved much of a limitation. The only reason that President Obama gave Congress when he fired the inspector general for the Corporation for National and Community Service in 2009 was that he lacked “the fullest confidence” in the inspector general. Trump followed this practice.
The IG Independence and Empowerment Act tries to raise the bar to presidential firings of inspectors general by limiting removal to specified grounds. One of us has previously explained why such “for cause” restrictions won’t work. First, it likely will not survive scrutiny in the Supreme Court, which increasingly frowns on presidential removal restrictions. Second, the removal limitations won’t work in any event: A determined president can find a way to invoke one of the open-ended removal criteria (such as “gross mismanagement,” “abuse of authority” or “inefficiency”) to fire an inspector general. Third, many of the most questionable presidential inspector general firings concerned “acting” inspectors general who would not receive for-cause protection.
A different bill, the Securing Inspector General Independence Act of 2021, aims to slow down the firing process by, for example, limiting the president’s power to place an inspector general on “administrative leave” during the 30-day notice period before firing. This is a better step, though a relatively small one.
The best idea is for Congress to dry up presidents’ incentives for opportunistic firings and to limit the adverse effects of such firings when they occur. Both bills aim to do this by disallowing presidents to replace a fired inspector general with a political friend and requiring them to fill the vacancy with a senior nonpolitical official in the office of the fired inspector general or from another inspector general office. This approach would be effective and is clearly constitutional. It is the single most important step Congress can take to secure inspector general independence.
Extending Inspector General Jurisdiction to Justice Department Attorneys
Under current law, the Justice Department’s Office of Professional Responsibility (OPR), which was created in the wake of Watergate, is charged with “investigat[ing] allegations that Department attorneys, prosecutors, and immigration judges have committed misconduct while performing their duties to investigate, litigate, or give legal advice.” This OPR authority is expressly carved out of the Justice Department inspector general’s authority. The IG Independence and Empowerment Act would eliminate this carve-out and extend inspector general authority to investigating allegations of misconduct against Justice Department attorneys.
One argument for the change is that the OPR lacks independence (the OPR reports to the attorney general) and adequate transparency, while the inspector general has lots of both. The inspector general also has more credibility before Congress and the public. Another argument for change, made by the Project On Government Oversight, is that the OPR has not been effective at enforcing ethical compliance by Justice Department attorneys.
The National Association of Assistant United States Attorneys (NAAUSA) opposes this change. The main argument is that the OPR has been doing this job for decades and has relevant expertise, especially in ethics and state bar rules, that the inspector general lacks. There is some truth in this, though the inspector general has significant experience evaluating professional misconduct in a variety of contexts, and other inspectors general around the government are charged with investigating misconduct by lawyers.
The carve-out from the Justice Department inspector general’s authority for lawyer misconduct is an anomaly. Justice Department lawyers, especially federal prosecutors, have extraordinary and largely unchecked power over prosecution and asset seizure. This power deserves a serious check for abuse akin to the one that applies to almost every other aspect of executive branch activity. Even the NAAUSA recognizes the need for independent scrutiny for Justice Department attorneys, since it now advocates that the OPR be made independent. It is not clear whether transferring the OPR authority to the inspector general, or making the OPR a more serious and independent operation, or some other reform, is the right answer. But this is clearly an area where Congress should weigh in.
External Subpoena Authority
The IG Testimonial Subpoena Authority Act and the IG Independence and Empowerment Act would in different ways extend the inspector general’s subpoena authority to witnesses who are not current government employees. The argument for this power is that inspectors general are often stymied in their investigations by their inability to compel the testimony of former officials and nongovernmental witnesses. This is true, and it is a powerful point. But this expansion of inspector general authority would be a huge change from current practice in the inspector general community, and it would significantly enhance the already quite robust power of inspectors general.
More power is not always better, and the hard question is whether this new authority would enhance inspector general power too much. Inspectors general have done excellent work without this broader authority, leaving it to the press, Congress and other investigators to fill in the holes in their reports created by lack of access to witnesses outside the government. One mark of how significant a change this new authority would be is that even its proponents would require an inspector general to consider attorney general objections before issuing the subpoena and would impose oversight by a panel of the Council of the Inspectors General on Integrity and Efficiency, the inspector general-run watchdog for inspectors general.
Once again, the right answer here is not clear. Perhaps a better first step is to require attorney general approval for the expanded subpoena authority with defined criteria for exercising such authority and a reporting requirement to Congress to explain any attorney general refusal to extend the authority.