CAROL THOMPSON, A PARTNER AT THE FEDERAL PRACTICE GROUP, AND DANIEL POPE, AN ASSOCIATE AT THE FEDERAL PRACTICE GROUP, PENNED A BLOG FOR LAW360 ON NEED FOR IG REFORM
Posted By smay || 5-May-2021
When the Watchdogs Need Guard Dogs, IG Reform is Urgently Needed
In response to President Trump’s so-called Friday night massacres of several IGs, and other problems with OIGs the Trump Administration brought to light, legislation aimed at reforming OIGs has been compiled into the Inspector General Independence and Empowerment Act, which members of the House Oversight and Reform Committee introduced last week. It was originally in response to the corruption of President Nixon that President Carter signed the Inspector General Act of 1978, which created Offices of Inspectors General (OIGs) to audit and investigate federal agency programs, into law. Created to investigate federal agencies on behalf of Congress and the agencies themselves, the OIGs also perform an important function in regard to federal employees, serving in many instances to receive protected disclosures from whistleblowers and to protect those whistleblowers from retaliation.
The Inspector General Reform Act of 2008, the most recent reform, provided that each IG shall be appointed by the President, with the advice and consent of the Senate, “without regard to political affiliation.” It also stated:
An Inspector General may be removed from office by the President. If an Inspector General is removed . . . the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer.
While the House version of this law would have prevented the President from removing Inspectors General without good cause, the final bill did not. This left the President with unfettered discretion to remove IGs, and leaves the IGs without an avenue for redress if they are removed in retaliation for doing their jobs, both of which are problematic, as we saw recently.
Within a short period of only a few months, Trump removed four IGs starting with his own appointee, Michael Atkinson, the Intelligence Community IG whose decision to bring a whistleblower complaint to Congress led to Trump’s impeachment. Next came Glenn Fine, then acting IG at the DoD named to oversee the spending of the first coronavirus relief package. Of Fine, a longtime civil servant, Trump said “We have a lot of IGs in from the Obama era . . . And as you know, it’s a presidential decision. . .” Trump also removed Christi Grimm, then acting HHS IG who wrote a report detailing COVID-19 testing delays and shortage of hospital supplies, which Trump called “wrong.” Trump then fired State Department IG Steve Linick at the request of Secretary Pompeo, who is said to have been under investigation by Linick. There can be no doubt that other IGs understood the message these terminations conveyed, although it will be difficult to ever assess what OIG work may have squashed or otherwise left to languish.
In order to best serve the Secretaries, the agencies, and Congress, the IGs must be themselves protected from reprisal and retaliation from the President and their own superiors – some OIGs are viewed as beholden to leadership, and some are by definition. For example, the website of the IG for the Army Reserve states the IG “is an extension of the eyes, ears, voice, and conscience of the Commander,” and throughout DoD entities IGs report to Commanders, who are in the best position to abuse their authority or engage in fraud, waste, and abuse, leaving those IGs in untenable positions.
The new proposed legislation would prevent the removal of IGs without good cause, and limit those appointed as “acting” IGs to deputy IGs and former IGs of other agencies, as opposed to others in agency management. The bill would also grant IGs subpoena power, the authority to investigate wrongdoing by agency counsel, and enhance whistleblower training. While this legislation, or something like it, is necessary for the various offices of Inspectors General to function as Congress intended – as independent watchdogs – further reform may be needed as well. IGs should not simply forward the interests of the President, or the leadership of the agencies they serve, they must function as they are meant to be, independent watchdogs who serve the interests of justice and the law, for Congress, and for the federal employees across all agencies.
By Carol Thompson and Daniel Pope of the Federal Practice Group