By Christopher Yukins & Jessica Tillipman
June 2020
In actions taken over the past few months, the Trump administration has removed a number of federal inspectors general who posed political risk (of various dimensions) to the administration. The inspectors general play a vital role as “watchdogs” across the federal government, and these actions against inspectors general have no historical precedent, though the Inspector General Act was passed more than forty years ago. Critics have called the Trump administration’s actions unlawful; others have called for reform of the law, and a number of reform measures are pending before Congress.
GW Law hosted a free webinar on the Trump administration’s attacks on the inspectors general on June 3, 2020.
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To put the Trump administration’s actions in context, this piece will first review key elements of the Inspector General Act, and its implementation by a series of Democratic and Republican administrations before Trump took office. The analysis will focus on the Act’s provisions intended to maintain the independence of the inspectors general – provisions which were strengthened in 2008, when Congress added a requirement that the President give Congress 30 days’ notice before removing an inspector general.
The piece will then detail the Trump administration’s actions against five inspectors general in April-May 2020, and the common theme which appears to run across these actions: in each case, the inspector general under attack apparently posed some risk of political embarrassment to the Trump administration. The piece will assess whether removing an inspector general for political risk is proper under current law, and if so what, if any, statutory reforms might better ensure the independence of the inspectors general.
Key Elements of the Inspector General Act
Inspectors general are lodged in 72 agencies across the federal government, including all the major departments. See Government Accountability Office Rep. No. GAO-18-270, at 6. As the coordinating council for the inspectors general notes, each inspector general (IG) “is responsible for conducting audits and investigations relating to the programs and operations of its agency, and providing leadership and coordination and recommending policies for . . . promoting economy, efficiency, and effectiveness and preventing and detecting fraud and abuse in those programs and operations.” Each IG is to “keep the agency head and the Congress ‘fully and currently informed’” about problems at the IG’s agency. The Inspector General Act preserves the independence of the inspectors general by various means, discussed below, “designed to ensure the objectivity of OIG work and to safeguard against efforts to compromise that objectivity or hinder OIG operations.” Much like similar anti-corruption functions in other governments, such as the National Audit Office and the Committee of Public Accounts in the United Kingdom, the inspectors general serve as independent “watchdogs” inside the government.
The inspectors general in the U.S. government emerged in response to two major historical developments. The first came shortly after World War II, when primary responsibility for reviewing federal spending shifted from an arm of Congress, the General Accounting Office (now called the Government Accountability Office) (GAO), to the agencies themselves. From its founding in 1921, GAO, under the Comptroller General, had employed thousands of clerks to review a growing wave of federal spending. As the federal government continued to expand after World War II, responsibility for good fiscal practices shifted to the spending agencies.
As part of this shift, in 1959 Congress established an “inspector general and comptroller” in the State Department, the forerunner to the current inspectors general across the government, per Public Law 86-108, 73 Stat. 246, 253 (1959). Under the 1959 legislation, the State Department inspector general was to be appointed by the Secretary of State and to report to an Undersecretary of State. The State Department inspector general was a forerunner to other inspectors general installed at other agencies over the following decades. The authority and independence of the inspectors general were substantially strengthened with passage of the Inspector General Act of 1978.
Congress passed the Inspector General Act of 1978 in the wake of the second major historical event, the Watergate scandals that caused the collapse of the Nixon administration in 1974. Congress’ stated intent under the Act was to create “independent and objective units” to conduct investigations and make recommendations for improvement. (As the Congressional Research Service noted in a January 2019 report, inspectors general at several smaller agencies are appointed outside the Act; our focus here, however, is on the inspectors general at the major agencies affected by the Trump administration actions, and generally covered by the Act.) The Library of Congress has published a chronological history of the 1978 bill, and the U.S. House of Representatives has produced a detailed section-by-section history of the Inspector General Act of 1978 and its amendments.
Speeches on the House and Senate floor at the time of the Act’s passage in 1978, see 124 Cong. Rec., April 18, 1978 (House) & Sept. 22, 1978 (Senate), show that Congress’ intent was for the inspectors general to address ongoing waste, fraud and abuse at the agencies, such as reports of billions of dollars wasted at the then-Department of Health, Education & Welfare (HEW), and outright corruption such as a major bribery and kickback scandal which had emerged at the U.S. General Services Administration (GSA) and which had touched a former GSA Administrator. As President Jimmy Carter said when he signed the bill into law on October 12, 1978, “We’ve not yet completely succeeded in rooting out the embarrassing aspects of government management—or mis- management. This bill will go a long way toward resolving that problem.”
Professor Paul Light of New York University has pointed out that over the subsequent decades the role of the inspectors general gradually evolved. While the 1978 legislation called for inspectors general to both undertake investigations and provide management advice, over time the inspectors general – under pressure to justify their costs and authority – came to focus more on investigations, compliance and wrongdoing (what Professor Light called “gotcha audits”). This narrower focus on investigations has helped set the stage for conflicts between politicians (agency heads and presidents) concerned about embarrassing disclosures and their inspectors general.
Because of the inevitable conflicts in the inspector generals’ work, the Act included important provisions regarding IGs’ independence, which have been bolstered over the years. Those provisions are examined in detail below, with reference to key controversies that have surrounded these provisions protecting the independence of the inspectors general.
Appointment and Supervision of Inspectors General
Section 3 of the Inspector General Act says that an IG is to be appointed by the President and subject to Senate confirmation, “without respect to political affiliation and solely on the basis of integrity and demonstrated ability” in relevant professional skills, such as accounting or public administration. As the Congressional Research Service’s January 2019 report notes, at 11, most inspectors general are appointed in this manner, although there are important exceptions. The Inspector General Act also says that while each inspector general is to “report to and be under the general supervision” of the head of an agency, an IG is not to “report to, or be subject to supervision by, any other officer” of the agency.
No Impairment of Inspector General Investigations
As another protection of an IG’s independence, the Inspector General Act is explicit that the agency head shall not “prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation.” Senator Stapleton, a key supporter of the Act, said that this provision meant that “even the head of the agency may not prohibit, prevent, or limit the Inspector General from undertaking and completing any audit and investigation which the Inspector General deems necessary.” 124 Cong. Rec. at 30952. When he was explaining the Act on the Senate floor, Senator Stapleton noted that while this protection was implicit in the original House bill, because of its importance it was made explicit as the bill passed through the Senate. 124 Cong. Rec. at 30955. This provision barring the head of an agency from prohibiting, preventing or limiting any IG investigation remains unchanged in the current version of the Act.
Inspectors General To Be Independent of Agency Programs
In calling for inspectors general to be independent, Congress intended for the inspectors general to stand outside agencies’ normal programs. “The Inspectors General,” noted Rep. Elliott Levitas (D-GA), co-sponsor of the Inspector General Act, “will first of all be independent and have no program responsibility to divide allegiances.” 124 Cong. Rec. 10405 (Apr. 18, 1978). Senator Tom Eagleton, an important supporter of the bill, said that this “independence is fundamental.” 124 Cong. Rec. at 30952 (Sept. 22, 1978). “There is a natural tendency for an agency administrator,” he noted, “to be protective of the program that he or she administers. In some cases, frank recognition of waste, mismanagement, or wrongdoing reflects on the manager personally. Even if the manager is not implicated, revelations of wrongdoing, or waste may reflect adversely on the programs by undercutting public and congressional support. Under these circumstances, it is a fact of life that agency managers and supervisors in the executive branch do not always identify, or come forward with evidence of, failings in the programs they administer. For that reason, the responsibility for auditing and investigating must be assigned to individuals with clear independence whose responsibilities run directly to the agencv head and ultimately to Congress.” The Inspector General Act, said Senator Eagleton, “accomplishes this.”
Only the President May Remove an Inspector General, With a Statement of Reasons and 30 Days’ Notice
Section 4 of the original Inspector General Act gave only the President the authority to remove an inspector general from office, and the President was to “communicate the reasons of any such removal to both Houses of Congress.” An identical statutory requirement for a statement of reasons at removal was part of the legislation which created the offices of inspector general at HEW in 1976, Public Law No. 94-505, sec. 201, and at the Department of Energy in 1977, Public Law No. 95-91, sec. 208.
On May 12, 2020 – after concerns has arisen about the Trump administration’s actions against inspectors general — the Congressional Research Service (CRS) released a summary report on removals of inspectors general at presidential direction. The CRS report stated that prior presidents had publicly removed inspectors general on only two occasions:
- When President Ronald Reagan took office in 1981, he immediately notified Congress that he was removing all inspectors general. (The Trump administration’s transition reportedly initially notified several inspectors general that it would also release all standing inspectors general, but then reversed that position.) After initial strong opposition by the congressional leaders behind the Inspector General Act of 1978 (which was then less than three years old) on the grounds that Reagan was “politicizing” the position of inspector general, according to the CRS report the congressional opponents were ultimately mollified, in part because several of the inspectors general nominated by Reagan’s predecessor, President Carter, were reinstated. The CRS report noted that concerns persisted, however, because “some considered removal protections to be a part of the organizational design of the offices of inspectors general, ensuring that they could perform their duties free of the perception that they are partisan political actors.”
- On June 11, 2009, President Barack Obama notified Congress that he was removing the inspector general of the Corporation for National Community Service, Gerald Walpin. Many criticized Walpin’s removal, claiming that it was politically motivated, in part because Walpin was investigating a prominent Obama supporter, former National Basketball Association star and Sacramento mayor Kevin Johnson. A joint House-Senate staff report from a Republican-led Congress in November 2009 offered evidence to substantiate those claims. Walpin challenged his firing by seeking a writ of mandamus, but the U.S. Court of Appeals for the District of Columbia Circuit ultimately ruled against him in 2011. Although Walpin argued that the Obama administration had not provided Congress the statutorily required statement of reasons for his removal, the D.C. Circuit held that Obama met the “minimal statutory mandate that the President communicate to the Congress his ‘reasons’ for removal” when Obama notified Congress that he “‘no longer’ had ‘the fullest confidence’” in Walpin – almost precisely the formulation that President Trump recently used when he notified Congress that he was removing inspectors general (discussed below). See Walpin v. Corporation for National & Community Services, 630 F.3d 184, 187 (D.C. Cir. 2011). President Obama having met the “minimal statutory mandate” of a statement of reasons (a “loss of confidence”), said the court, the statute then merely opened the door for a discussion between Congress and the President. “Congress intended that the thirty-day notice requirement provide an opportunity for a more expansive discussion of the President’s reasons for removing an inspector general,” wrote the Court, citing S. Rep. No. 110–262, at 4 (2008) (notice provision added to “allow for an appropriate dialogue with Congress in the event that the planned transfer or removal is viewed as an inappropriate or politically motivated attempt to terminate an effective Inspector General”). That, said the court, had happened in Walpin’s case: in response to a congressional inquiry, the Obama administration had sent a letter to the inquiring senators stating that Walpin was removed after a review was requested by the Corporation for National and Community Services board, an action “‘precipitated by a May 20, 2009 Board meeting at which Mr. Walpin was confused, disoriented, unable to answer questions and exhibited other behavior that led the Board to question his capacity to serve.’” The Obama administration also “recited other examples of inappropriate activity and concluded that Walpin ‘had become unduly disruptive to agency operations, impairing his effectiveness and . . . losing the confidence of the Board and the agency.’” Id. at 186-87.
The website FactCheck.org revisited this question in response to President Trump’s statement that “I’ve gotten rid of a lot of inspector generals; every president has. I think every president has gotten rid of probably more than I have.” The FactCheck website cited other instances when inspectors general resigned or otherwise departed from office during prior administrations. Fox News similarly chronicled episodes during the Obama administration when inspectors general were pressured – sometimes aggressively — regarding their work. The FactCheck website noted, though, that none of the actions it cited involved the formal removal of inspectors general.
In their recent book, U.S. Inspectors General: Truth Tellers in Turbulent Times, ch. 3 (Brookings Institution Press, Dec. 2019), Charles Johnson (Texas A&M University) and Kathryn Newcomer (George Washington University) reported that when President George H.W. Bush entered office after Reagan, he too sought to remove all inspectors general – but backtracked (as the Trump administration later would) in the face of opposition.
Congress hoped to shelter the inspectors general from improper removal when it passed the Inspector General Reform Act in 2008. Congress amended the original 1978 law to require that the President give Congress 30 days’ notice before an inspector general is removed, to give members of Congress an opportunity to demand an explanation and respond. As is discussed below, however, the Senate in 2008 rejected key reforms which had been included in the House of Representatives’ version of the legislation: a requirement that inspectors general be removed only for cause, and a fixed term of seven years for inspectors general.
The Trump administration’s current round of actions removing inspectors general has once again raised the question of how, and when, an inspector general may be removed. In an interview with National Public Radio (NPR) broadcast on May 19, 2020, after President Trump notified Congress that he would be removing the State Department inspector general, former head of the U.S. Office of Government Ethics (OGE) Walter Schaub noted that while the President has the authority to terminate an inspector general, Congress anticipated that an inspector general would be fired only for malfeasance or poor performance. Because the Inspector General Act does not make that expectation explicit – does not limit the President’s authority, to require that an inspector general be removed only for cause – Schaub argued that the current statutory structure leaves it to Congress to respond to an improper firing.
Inspector Generals’ Work To Be Transparent To Congress – and the Public
Sections 4 and 5 of the Inspector General Act require the inspectors general to report regularly to Congress on their work – a unique legal obligation which places the inspectors general directly between two sometimes warring branches of government. Under Section 4, an inspector general must cross-refer recommendations made to the agency head to the cognizant congressional committees; under Section 5, an inspector general must make semi-annual reports to Congress (after first reporting to the head of the agency), detailing the work, investigations and recommendations of the inspector general – and those reports generally must be made public. Section 5 also requires the inspector general to report to the agency head any “particularly serious or flagrant problems, abuses, or deficiencies relating to the administration of programs and operations” at the agency, and the agency head must report those to Congress within seven days, with covering comments.
At the CIA — which has a separate statute governing its inspector general – the IG’s disclosure requirement is even more onerous, because of the history of Congress’ oversight of the agency. There, if an investigation by the inspector general focuses on the Director or certain other senior CIA officials, the inspector general must report that investigation directly to the congressional intelligence committees.
In his preface to Professors Johnson and Newcomer’s recent book on the inspectors general, former DOE Inspector General Gregory Friedman wrote of the stress that forced transparency puts on the IGs, and how the inspector general’s dual role — investigator in the executive branch, legally required to report to Congress — is made even more difficult in times of partisan fighting:
The IGs are organizationally part of the executive branch, yet they have a statutory responsibility to report their findings to the legislative branch in a timely fashion. This is a unique relationship that has been characterized as the equivalent of straddling a barbed wire fence. The authors conclude, correctly in my view, that striking the right balance in dealing with these relationships, which often seem entirely incompatible, requires great care on the part of the IG. And, the challenge is further complicated when the IG operates in an environment that is highly partisan and/or when executive and legislative branch relationships are already strained.
Those tensions inherent in the Inspector General Act erupted into a national debate when, beginning in early April 2020, the Trump administration launched a series of actions to remove inspectors general.
Trump Administration Actions Against the Inspectors General
At the beginning of April, the Trump administration began an unprecedented wave of actions removing acting and confirmed inspectors general. The wave began with the removal of Michael Atkinson, inspector general to the intelligence community, in apparent reprisal for his decision to forward the whistleblower complaint which contributed to Trump’s impeachment. That action opened the gate to a flood of other removals – a pattern of “dangerous . . . unprecedented steps to undercut oversight,” in the words of CREW’s executive director, Noah Bookbinder – all of which seemed to stem from past or potential embarrassment to the Trump administration.
Removed: Michael Atkinson, Inspector General for the Intelligence Community
On April 3, 2020, President Trump gave 30-days’ notice to Congress that he would remove Michael Atkinson, inspector general for the U.S. intelligence community. In accordance with statutory requirements under 50 U.S.C. § 3033 for handling whistleblower complaints, Atkinson had passed forward to Congress a whistleblower’s “urgent concern” regarding Trump’s dealings with President Zelensky of Ukraine – a complaint which helped lead to Trump’s December 18, 2019 impeachment by the House of Representatives.
At an April 4, 2020 press briefing, Trump was asked about the firing of Atkinson, and he readily acknowledged that he had removed Atkinson because of the inspector general’s role in passing forward the whistleblower complaint:
Q Mr. President, this is off topic. It’s about the announcement from last night. It’s a yes or no question, but not that we expect the answer to be yes or no.
But wasn’t Michael Atkinson doing the job of the Inspector General of the intelligence community, the job he was supposed to do, when he simply took the whistleblower complaint to Congress that hadn’t been taken previously? Wasn’t he doing the job that he was supposed to do, that American taxpayers were paying him to do? And why did you decide to terminate —
THE PRESIDENT: I thought he did a terrible job. Absolutely terrible. He took a whistleblower report, which turned out to be a fake report — it was fake. It was totally wrong. It was about my conversation with the President of Ukraine. He took a fake report and he brought it to Congress, with an emergency. Okay? Not a big Trump fan — that, I can tell you.
* * * * *
So we offered this IG — I don’t know him; I don’t think I ever met him. I don’t think I — he never even came in to see me. How can you do that without seeing the person? Never came in to see me. Never requested to see me. He took this terrible, inaccurate whistleblower report — right? — and he brought it to Congress.
* * * * *
Q Mr. President, did you run by your decision to dismiss the Inspector General by Senator McConnell?
THE PRESIDENT: Okay, we’ll get off this because people want to talk about what we’re talking about. But let me just tell you something: That’s my decision. I have the absolute right. Even the fake news last night said, “He has the absolute right to do it.”
Trump’s notice to Congress regarding the inspector general’s removal stated merely that Trump had lost confidence in Atkinson. In a letter of April 8, 2020, reported on by The Hill, Senators Charles Grassley (R-IA), Mitt Romney (R-UT), Susan Collins (R-ME), Gary Peters (D-MI), Dianne Feinstein (D-CA), Jon Tester (D-MT), Mark Warner (D-VA) and Ron Wyden (D-OR) demanded an explanation for Atkinson’s removal. In a position that would later reemerge in another IG’s removal, the senators wrote that “Congressional intent is clear that an expression of lost confidence, without further explanation, is not sufficient to fulfill the requirements of the statute.” Congress intended, they argued, 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.”
In a May 18, 2020 letter regarding the removal of the State Department inspector general Steve Linick (discussed below), Senator Grassley noted that the Trump administration had not yet responded to the senators’ April 8 letter asking why Michael Atkinson was removed.
By letter of May 26, 2020 – fully 48 days after Grassley’s request, and long after the 30-day pre-removal period had lapsed – White House Counsel Pat Cipollone finally responded to Grassley’s request for an explanation for Inspector General Atkinson’s removal. Cipollone’s letter, detailed below, also discussed the removal of Steve Linick at the State Department, but offered no further explanation for any of the removals. In a statement, Senator Grassley called the White House’s response inadequate:
Though the Constitution gives the president the authority to manage executive branch personnel, Congress made clear that if the president is going to fire an inspector general, there ought to be a good reason for it. The White House Counsel’s response failed to address this requirement, which Congress clearly stated in statute and accompanying reports. I don’t dispute the president’s authority under the Constitution, but without sufficient explanation, it’s fair to question the president’s rationale for removing an inspector general. If the president has a good reason to remove an inspector general, just tell Congress what it is. Otherwise, the American people will be left speculating whether political or self interests are to blame. That’s not good for the presidency or government accountability.
The White House Counsel’s letter also discussed the installation of acting inspectors general who are “dual-hatted” with program responsibilities at their agencies; those issues are discussed further below.
Removed: Glenn Fine, Acting Inspector General of the Department of Defense
On April 6, 2020, the Trump administration removed Glenn Fine, acting inspector general of the Department of Defense, who was slated to chair the federal panel Congress created to oversee the Trump administration’s management of the $2 trillion COVID-19 stimulus package. Jason Abend, a senior policy advisor at U.S. Customs and Border Protection, had been nominated three days earlier for the permanent position of inspector general at the Defense Department; there was no apparent practical or legal reason to remove Glenn Fine while Abend’s nomination remained pending. Instead, Fine was replaced by EPA inspector general Sean O’Donnell, who thus took on three jobs – EPA inspector general, Defense Department acting inspector general, and chair of the Pandemic Response Accountability Committee (discussed below).
The removal of Fine is perhaps the most opaque of the Trump administration’s moves against the inspectors general. Fine had years of experience in the inspector general’s office, and was widely respected for his work. Fine was roundly praised by former Secretary of Defense James Mattis, who told Yahoo News that “Mr. Fine is a public servant in the finest tradition of honest, competent governance.” Mattis said that in his “years of extensive engagement with him as our Department of Defense’s acting Inspector General, [Fine] proved to be a leader whose personal and managerial integrity were always of the highest order.” Fine’s only deficit, it seems, was that he joined the inspector general’s office during the Obama administration.
In an April 7, 2020 press briefing, Trump was asked about his decision to remove Fine. Trump was unspecific, but suggested that Fine was removed as part of a broader effort to replace Obama-era inspectors general:
Q Thank you, sir. Can you talk about your decision to remove Glenn Fine from the Pandemic Response Accountability Committee? And there’s some — that move and some of the criticism you’ve leveled at IGs, how does the American public have confidence that —
THE PRESIDENT: Yeah.
Q — there’ll be oversight?
THE PRESIDENT: Well, we have a IGs in from the Obama era. And as you know, it’s a presidential decision. And I left them, largely. I may change some, but I left them.
But when we have, you know, reports of bias and when we have different things coming in — I don’t know Fine; I don’t think I ever met Fine. I heard the name —
* * * *
THE PRESIDENT: I heard the name. I don’t know where he is. Maybe he was from Clinton. Okay? You have to check that out? Okay, maybe he’s from Clinton.
But we did change him, but we changed a number. We have about seven nominations in. I believe we put seven very, very highly qualified people for the IG position. And, you know, that’s a decision that I could have made three years ago and I could have made two years ago. But we’re putting in — not so much for him. We’re putting in seven names. I think it was seven. And they’re going in now.
By being removed as acting inspector general for the Defense Department, Fine avoided a constitutional contretemps between the Trump administration and Congress over implementation of the “Coronavirus Aid, Relief, and Economic Security Act” (CARES Act), which made trillions of dollars in supplemental appropriations to help the United States respond to the COVID-19 pandemic, and increased funding and authority of the inspectors general to ensure accountability in that spending.
When President Trump signed the CARES Act on March 27, 2020, he offered a signing statement which, among other things, addressed Section 15010(c)(3)(B) of the CARES Act. That section requires the Chairperson of the Council of the Inspectors General on Integrity and Efficiency to consult with senior members of Congress regarding the selection of the Executive Director and Deputy Executive Director for the newly formed Pandemic Response Accountability Committee (PRAC). Specifically, Section 15010 says that the appointments are to be made “in consultation with the majority leader of the Senate, the Speaker of the House of Representatives, the minority leader of the Senate, and the minority leader of the House of Representatives.”
The PRAC, President Trump noted in his signing statement, “is an executive branch entity charged with conducting and coordinating oversight of the Federal Government’s response to the coronavirus outbreak.” While he had no objection to the Chairperson of the PRAC consulting informally with member of Congress with respect to hiring decisions, Trump warned that it would be an unconstitutional violation of separation of powers to require those consultations. “Accordingly,” Trump said, “my Administration will treat this provision as hortatory but not mandatory.”
A Congressional Research Service report on the PRAC noted that Fine, then acting inspector general of the Defense Department, was appointed chairperson of the PRAC by Michael Horowitz, inspector general of the Justice Department, on March 30, 2020 (three days after the CARES Act was signed). Only a few days later, on April 6, 2020, President Trump named EPA inspector general Sean O’Donnell to replace Fine as acting DoD inspector general, which meant that Fine was no longer eligible to serve as the PRAC chairperson – and Fine would not have to resolve the conflict over staffing created by Trump’s signing statement.
By returning to his role as principal deputy inspector general at the Defense Department – and away from serving as chair of the PRAC – Fine effectively avoided a potentially much more serious confrontation between the Trump administration and Congress, involving the role of the new special inspector general for stimulus spending under the CARES Act.
Under the CARES Act, the PRAC is to have a major – and potentially controversial – role in helping coordinate efforts by the various inspectors general to oversee coronavirus relief spending. Oversight by the inspectors general includes investigations, and 2016 legislation (Pub. Law 114-317) broadened the IGs’ authority to demand information from their agencies. Section 4018 of the CARES Act requires the new Special Inspector General for Pandemic Recovery, named to oversee loans and investments made by the Treasury Department under the Act, to report to Congress when other agencies refuse to cooperate in his investigations. This reporting obligation is consonant with the inspector generals’ traditional obligation under the Inspector General Act, to report to Congress on ongoing investigations.
In his signing statement for the CARES Act, however, President Trump said that the Special Inspector General is not to report to Congress on uncooperative agencies except with the “presidential supervision” mandated by the Constitution. The President’s signing statement thus imposed a significant constraint on the Special Inspector General’s independence, which has drawn criticism from Democrats, who (the New York Times reported) insisted on the oversight provision in return for approving roughly $500 billion in corporate relief under the CARES Act. When he was effectively removed from the chairmanship of the PRAC, Glenn Fine stepped away from what observers have warned may be an ongoing conflict between Congress and the executive branch over the role of the Special Inspector General, if the agencies refuse to cooperate in investigations over CARES Act spending.
Glenn Fine’s story did not end with his return to serving as principal deputy IG, however. On May 26, 2020, the Pentagon announced that Fine was resigning from government. In a statement to CNN, James Mattis said: “It’s regrettable seeing such a highly competent, non-partisan patriot and public servant leaving government service. Mr. Glenn Fine represents all that is noble in taking on the hard work of keeping government honest and responsive. He will be missed.”
Removed: Christi Grimm, Acting Inspector General of the Department of Health and Human Services
On May 1, 2020, the Trump administration ousted Christi Grimm as head of the Office of the Inspector General (OIG) for the Department of Health and Human Services (HHS), after she released a report critical of the Trump administration’s preparations for the COVID-19 pandemic. Although Trump denounced the report as “Another Fake Dossier!” in a tweet of April 7, 2020, the American Hospital Association had confirmed the day before that the “important and timely report by the HHS Office of the Inspector General accurately captures the crisis that hospitals and health systems, physicians and nurses on the front lines face of not having enough personal protective equipment (PPE), medical supplies and equipment in their fight against COVID-19.”
In an April 7, 2020 press briefing, President Trump was asked about the HHS OIG report. His response is worth reproducing in full, because it reveals Trump’s working assumption that an inspector general appointed by a predecessor would be disloyal – and would distort the truth as a result. The opening question is from a reporter:
Q Despite the nearly 1.8 million tests that you say the United States has done, the Inspector General for the Department of Health and Human Services released a report today — a survey — of more than 300 hospitals across the country. And the number one complaint from those hospitals were severe shortages of testing supplies and a really long wait time.
THE PRESIDENT: Well, it’s just wrong.
Q I mean, a week or longer.
THE PRESIDENT: It’s just wrong. Did I hear the word “inspector general”? Really? It’s wrong. And they’ll talk to you about it. It’s wrong.
Q But this is your own government.
THE PRESIDENT: Uh, it’s — well, where did he come from — the inspector general? What’s his name?
Q It came from the inspector general report —
THE PRESIDENT: No, what’s his name? What’s his name?
Q I don’t know his name off of the top of my head.
THE PRESIDENT: Well, find me his name. Let me know. Okay? If you find me his name, I’d appreciate it.
* * * *
Q Why is it still taking so long?
THE PRESIDENT: But we’ve done more testing and had more results than any country, anywhere in the world. They’re doing an incredible job. Now they’re all calling us. They want our testing. “What are we doing?” “How do you do the five-minute test?” “How do you do the 15-minute test?”
So, give me the name of the inspector general. Could politics be entered into that?
In a follow-up, reporters gave Trump the name of acting inspector general Christi Grimm, and he asked – again – whether she had been appointed by another president:
Q Mr. President, if I can follow up on this question of the HHS inspector general. And, by the way, her name is Christi Grimm. And it wasn’t so much her opinion, but they interviewed 323 different hospitals.
THE PRESIDENT: Well, it still could be her opinion. But when was she appointed? When was she appointed?
Q I’m not sure when she was appointed.
THE PRESIDENT: Would you do me a favor? Let me know.
Q I’ll — I’ll check on it.
THE PRESIDENT: No, no, let me know now. I have to know now, Jon. Let me know now.
Q But the point is —
THE PRESIDENT: Because we are doing an incredible job of testing. We are doing a better job than anybody in the world right now on testing. There’s nobody close. And other nations admit this. Other nations have admitted it very strongly. Other nations are calling us, wanting to know about our testing. Let me know when she was appointed, would you?
As the New York Times reported, although President Trump suggested on several occasions that Christi Grimm was an Obama appointee, in fact she had been working in government since the Clinton administration, and had served under President George W. Bush as well.
Removed: Steve Linick, Inspector General for the Department of State
On May 15, 2020, President Trump notified Congress that Steve Linick, Inspector General of the State Department, will be removed once the statutory 30-day notice period expires. Linick’s firing came after he reportedly launched an inquiry into Secretary of State Mike Pompeo, according to a statement issued by the Chairman of the House Committee on Foreign Affairs Eliot Engel. In a conference with the press, President Trump acknowledged that he fired Linick at Secretary Pompeo’s recommendation though Trump had little understanding of the facts underlying the firing; he stated that he had an absolute right to fire inspectors general.
Trump’s exchange with the press was telling, because it made plain that the President did not know the facts underlying Linick’s firing; Trump was simply acting at the behest of Secretary Pompeo, and was glad to do so because Linick was appointed by President Obama:
Q: Mr. President, can you explain, sir, why you decided to fire the inspector general at the State Department?
THE PRESIDENT: Yeah, I don’t know him at all. I never even heard of him, but I was asked to by the State Department, by Mike. I offered — most of my people, almost all of them — I said, “You know, these are Obama appointees. And if you’d like to let him go, I think you should let them go, but that’s up to you.”
He’s an Obama employee. I understand he had a lot of problems with the DOD. There was an investigation on him — on the inspector general. I don’t know anything about it.
So I don’t know him. I never heard of him. But they asked me to terminate him. I have the absolute right, as President, to terminate. I’ve said, “Who appointed him?” And they said, “President Obama.” I said, “Look, I’ll terminate him.”
I don’t know what’s going on other than that, but you’d have to ask Mike Pompeo. But they did ask me to do it and I did it. I have the right to terminate the inspector generals. And I would have — I would have suggested — and I did suggest, in pretty much all cases, you get rid of the attorney generals, because it happens to be very political, whether you like it or not. And many of these people were Obama appointments, and so I just got rid of him.
The reporters pressed President Trump on this point, asking for an explanation for Linick’s removal. Trump made plain that he had long urged his senior officials to remove inspectors general appointed by President Obama:
Q But if you said you don’t know him, sir, what was he doing that was treating you unfairly?
THE PRESIDENT: I don’t know. I don’t know anything about him. I don’t know. I don’t know anything about him other than the State Department — and Mike, in particular — I guess they weren’t happy with the job he’s doing or something. So, because it’s my right to do it, I said, “Sure, I’ll do it.”
I’ve gotten rid of a lot of inspector generals; every President has. I think every President has gotten rid of probably more than I have. A lot of our people kept the Obama inspector general, and I think, generally speaking, that’s not a good thing to do, but they’ve kept them.
But I told them — for three years I said, “Anybody who wants to get rid of their inspector generals because they were appointed by President Obama, I think you should do so.” Some of them didn’t, but now they’re doing — a couple of them are doing it now.
Trump closed by making it clear that he did not know whether Secretary Pompeo had in fact asked Trump to remove an inspector general who was investigating Pompeo, which could trigger concerns under the Inspector General Act’s ban against “prevent[ing] or prohibit[ing] the Inspector General from initiating, carrying out, or completing any audit or investigation”:
Q Mr. President, there is an appearance of a conflict of interest that Secretary Pompeo is asking you to fire an inspector general that’s investigating —
THE PRESIDENT: That I can’t tell you. I don’t — I don’t think so. I think maybe he thinks he’s being treated unfairly.
Again, he wanted to — he asked me if that would be possible. I said, “I’ll do that. Sure.” I think it should have been done a long time ago, frankly. And this is a man that has had some controversy — this inspector general. But — so again, I don’t know anything. I haven’t even read much about him. I see that it’s a little bit of a story — not much of a story, because everybody agrees that I have the absolute right to fire the inspector generals. I think they should have done it a long time ago.
Separately, Secretary Pompeo stated to the press that he was not aware of Inspector General Linick’s reported investigation of Pompeo and his wife when Pompeo recommended to President Trump that Linick be fired.
Secretary Pompeo told Laura Ingraham on Fox News that he had recommended that Linick be removed because the inspector general “was acting in a way that was deeply inconsistent with what the State Department was trying to do. . . . His office was leaking information, we tried to get him to be part of a team that was going to help protect his own officers from COVID-19. He refused to be an active participant. He was investigating policies he simply didn’t like. That’s not the role of an inspector general.”
On May 18, 2020 the Washington Post reported on an interview with Secretary Pompeo, in which he argued that the inspector general – like every other employee of the State Department – should have “the same mission set,” as “one team”:
“I actually hope the message that went out to the State Department is that every employee has the same mission set,” [Pompeo] said. “We’ve talked about one team, one mission here since the very day that I came here and talked about getting our swagger back. That applies to every employee of the Department of State, wherever you may work, in our legal shop, in our regional bureaus or the inspector general’s operation.”
In a press briefing at the State Department two days later, Secretary Pompeo addressed Linick’s removal. First, Pompeo was asked whether the Trump administration would be responding to Congress’ request for an explanation as to why Linick was to be removed:
QUESTION: Several Senate Republicans say they want a specific explanation as to why the administration fired the inspector general here. Senator Grassley says, “An expression of lost confidence, without further explanation, is not sufficient to fulfill the requirements of the IG Reform Act.” Will you provide Congress a more detailed explanation on why you recommended the firing to the President? And will the State Department make the House Foreign Affairs Committee deadline for documents this Friday at 5:00?
SECRETARY POMPEO: So there’s been lots of discussion about – I’ve read a number of reports. Let me say three things. First, the President has the unilateral right to choose who he wants to be his inspector general at every agency in the federal government. They are presidentially confirmed positions, and those persons, just like all of us, serve at the pleasure of the President of the United States.
In this case, I recommended to the President that Steve Linick be terminated. I frankly should have done it some time ago.
Secretary Pompeo thus pivoted to the broader question whether all the Obama-appointed inspectors general could have – and should have – been removed by President Trump.
The next round of questions probed Secretary Pompeo on what, exactly, Steve Linick might have done to warrant removal. In his responses, Pompeo acknowledged that the rationale for Linick’s removal would be shared “with the appropriate people”:
QUESTION: Okay. So you have said, sir, that Mr. Linick was “undermining” the department’s mission. What exactly does that mean? Can you give us examples? Even the President doesn’t know what that means. He says he didn’t really know the guy before you mentioned it. So what specifically has Mr. Linick done?
SECRETARY POMPEO: Yeah. Yeah, unlike others, I don’t talk about personnel matters. I don’t leak to you all, and —
QUESTION: So did he leak?
SECRETARY POMPEO: Yeah, I just – I’ll just say this: I can’t talk. I can’t give you specificity. We’ll share with the appropriate people the rationale, but no – there should be no mistake. . . .
Secretary Pompeo strongly denied, however, that Linick’s removal was retaliatory. His argument on this point was somewhat confusing: on one hand, Secretary Pompeo stated that retaliation could not have been the motive because he was not aware of any investigations underway by Linick, and on the other hand Secretary Pompeo acknowledged that he had responded to detailed questions in an investigation:
SECRETARY POMPEO: May I answer the question, if you will? I appreciate the question. Let’s be clear. There are claims that this was for a retaliation for some investigation that the Inspector General’s Office here was engaged in. It’s patently false. I have no sense of what investigations were taking place inside the Inspector General’s Office. Couldn’t possibly have retaliated for all the things – I’ve seen the various stories that – like, someone was walking my dog to sell arms to my dry cleaner. (Laughter.) I mean, it’s all just crazy. It’s all crazy stuff.
QUESTION: What about the Saudi arms? Sir —
SECRETARY POMPEO: So I didn’t have access to that information, so I couldn’t possibly have retaliated. It would have been impossible. There’s one exception. I was asked a series of questions in writing; I responded to those questions with respect to a particular investigation. That was some time earlier this year, as best I can recall, responding to those questions. I don’t know the scope. I don’t know the nature of that investigation, other than what I would have seen from the nature of the questions that I was presented. I did what was right. I don’t know if that investigation is continuing. I don’t know if that investigation has been closed out. I don’t have any sense of that. Again, it’s not possible for there have been retaliation.
Secretary Pompeo’s public statements on Linick’s removal were important, because they went beyond President Trump’s blanket assertion that Obama-era inspector generals should be removed as a matter of course. Pompeo’s statements reflected a belief that inspectors general should be part of the Administration’s “team,” despite the Inspector General Act’s clear requirements – and the clear demands of the job – that inspectors general be objective and independent. This approach suggested that all inspectors general (regardless of when appointed, or by whom) faced a new challenge in the Trump administration: to ensure that they are perceived as part of the “team,” even when their investigations set them at odds with the Trump administration.
Secretary Pompeo’s statements reflected a belief that inspectors general should be part of the Administration’s “team”
By letter of May 18, 2020, noted above, Senator Grassley had asked the White House for an explanation for Linick’s removal, and he reportedly had been assured a response was forthcoming. As discussed above, however, when White House Counsel Pat Cipollone responded by letter of May 26, 2020, Cipollone offered no further explanation beyond Trump’s original statement that he had “lost confidence” in Linick. Cipollone cited the Walpin decision in the D.C. Circuit (discussed above) to argue that no further explanation was needed from the President. Cipollone also acknowledged that Linick was fired at the recommendation of Secretary Pompeo.
Cipollone noted that Linick had been replaced as acting inspector general at the State Department by Ambassador Stephen Akard, who, Cipollone wrote, “currently serves as the Director of the Office of Foreign Missions . . . [where] he is responsible for the implementation of decisions regarding the treatment of foreign missions and their members in the United States.” “Dual-hatting” an agency official as an inspector general is contrary to the intent of those who sponsored the Inspector General Act, discussed above, because the conflicts of interest erode the inspector general’s independence – which is statutorily required. Several members of Congress complained directly to the State Department about Akard’s dual role, and Senator Grassley sharply criticized this “dual-hatting” in a press release of May 26, 2020:
Nor is placing political appointees from the overseen agency into an acting leadership position within an inspector general office acceptable, especially when those individuals are keeping their appointments at the same time. The White House Counsel’s letter does not address this glaring conflict of interest. Congress established inspectors general to serve the American people—to be independent and objective watchdogs, not agency lapdogs.
“I’ve made clear that acting inspectors general should not be political appointees in order to preserve the independence required of the office,” said Grassley in his statement, “and I’m working with colleagues on legislation to codify this principle.”
The White House Counsel couched much of his letter to Senator Grassley in terms of the president’s constitutional prerogative to remove executive officers, including inspectors general. This constitutional issue dated back to at least 2007, when George W. Bush’s administration notified Congress that Bush could veto legislation that would bar presidents from removing inspectors general, except for cause. The Bush administration’s Statement of Administration Policy regarding H.R. 928 in the 110th Congress (predecessor to the legislation which became the Inspector General Reform Act of 2008) said:
H.R. 928 would permit the President to remove IGs only for cause. The Administration strongly objects to this intrusion on the President’s removal authority and his ability to hold IGs accountable for their performance. The responsibility to “take Care that the Laws be faithfully executed” — which Article II vests solely in the President — includes the responsibility to supervise and guide how IGs and other executive branch officers investigate and respond to allegations of wrongdoing within the executive branch. IGs already have the independence necessary to perform their investigative functions with respect to individual agencies, because agency heads generally may not supervise IGs’ conduct of investigations. H.R. 928’s attempt to extend this current independence to include independence from supervision by the President does not enhance the function of IGs and raises grave constitutional concerns.
Although one of the key architects of the 2008 reform legislation, Rep. Jim Cooper (D-TN), termed this constitutional objection “flimsy,” 153 Cong. Rec. at H11189 (Oct. 3, 2007), as is discussed below the 2008 legislation ultimately did not include this “for-cause” limitation on the President’s removal power, and the constitutional issue of “for-cause” removal is currently pending before the Supreme Court in the case of Seila Law LLC v. Consumer Financial Protection Bureau.
Removed: Acting Inspector General Mitch Behm, Department of Transportation
On May 15, 2020 (the same day that Steve Linick was removed as inspector general at the State Department), the Trump administration removed Mitch Behm, the acting Inspector General at the Department of Transportation (DOT), nominated Justice Department Eric Soskin to be the permanent Inspector General, and designated Howard “Skip” Elliott as the Department’s Acting Inspector General.
Mr. Elliott, the new DOT acting inspector general, also serves as the Administrator of the Federal Pipeline and Hazardous Materials Safety Administration, a post subject to Senate confirmation; his dual role raised questions (such as those posed in a letter from Senator Tammy Duckworth (D-IL) to President Trump) regarding the independence of Mr. Elliott as inspector general. As a Congressional Research Service report on the Federal Vacancies Reform Act of 1998, 5 U.S.C. §§ 3345-3349c, pointed out, the legislative history to the Vacancies Act reflects Congress’ understanding that because of their inherent conflicts of interest, executive officers should not serve simultaneously as inspectors general (or in other positions which require independence from the agency). See S. Rep. No. 105-250, at 20 (1998).
The long vacancies in inspector general positions have been a subject of congressional concern (see GAO Report No. GAO-18-270). The Trump administration’s failure to name a permanent inspector general at DOT had been specifically criticized by the watchdog group organization Citizens for Responsibility and Ethics in Washington (CREW), in part because of questions that House Democrats had raised in requesting an inspector general investigation into alleged favoritism shown by DOT in its dealings with the husband of Secretary of Transportation Elaine Chao, Senate Majority Leader Mitch McConnell, who is seeking reelection. When acting inspector general Mitch Behm was replaced, Democrats voiced concern that his removal was prompted by the requested investigation involving Secretary Chao.
Summary of Removals
The record reviewed above reflects the following removals of inspectors general (acting and confirmed) by the Trump administration in April-May 2020, the political risk that apparently motivated the removals, and open legal issues regarding the removals.
| Name/Title | Agency | Political Risk | Open Issues |
| Inspector General Michael Atkinson | Intelligence Community | Atkinson gave Congress whistleblower complaint regarding Ukraine | White House response to congressional inquiry after 30-day period expires adequate? Was Trump’s “loss of confidence” rationale enough ground for removal? |
| Acting Inspector General Glenn Fine | Defense | Obama appointee | |
| Acting Inspector Christi Grimm | Health & Human Services | Embarrassing report regarding COVID-19 preparations. | |
| Inspector General Steve Linick | State | Linick was not part of State Department “team”; IG investigation of Secretary Pompeo and wife reportedly pending. | Was Linick removed to block investigation? Was Trump’s “loss of confidence” enough ground for removal? “Dual-hatted” replacement IG? |
| Acting Inspector General Mitch Behm | Transportation | Congressionally requested investigation of Secretary Chao. | Was Behm removed to block investigation? “Dual-hatted” replacement IG? |
Proposals for Reform
In the concluding chapter to their study of the inspectors general which was published at the end of 2019, Professors Charles Johnson and Kathryn Newcomer cited many areas of potential reform for IGs, including better recruiting and appointment processes, and improved metrics for performance and enhanced funding – but they never mentioned issues surrounding removal of inspectors general. The current wave of removals, launched with President Trump’s action against Inspector General Atkinson in early April 2020, marked an abrupt change in direction for the inspector general community. Four removals followed, and more may come, as inspectors general at other agencies continue to investigate sensitive subjects, such as the Department of Homeland Security’s controversial acquisition of the southwestern border wall (a key Trump administration initiative), and the Justice Department’s procedures for classified investigations by the Federal Bureau of Investigation (FBI).
As the discussion above reflected, President Trump’s removal of Inspector General Atkinson – which Trump acknowledged was tied to Atkinson’s role in the impeachment – opened a broader assault by the Trump administration on inspectors general that pose political risk to the administration. When President Trump first entered office in 2017, his administration balked at removing all Obama-era inspectors general, although the President himself apparently would have favored that course; now, however, the Trump administration regularly removes inspectors general (including acting inspectors general) who appear disloyal to the administration.
Key members of Congress, for their part, assume that inspectors general will be removed only for cause – an assumption that is collapsing in the face of the Trump administration’s actions, which thus may open the door to statutory reform.
The controversy ignited by the Trump administration’s actions against inspectors general has revived policy debates, some of them decades old, about how to reshape the Inspector General Act to protect the independence of the inspectors general. This policy debate is unlikely to be resolved before the November 2020 elections. Given the public outcry surrounding the Trump administration’s actions against the inspectors general, however, legislative reform is much more likely if Democrats take control of the Senate (and thus, in all likelihood, the Congress) in the November 2020 elections.
One of the most commonly discussed reforms would be to limit the President’s authority to remove inspectors general, so that IGs could be removed only for cause (such as serious misconduct). In light of the Trump administration’s actions against attorney generals, watchdog groups such as the Project on Government Oversight (POGO) have urged that these types of “for-cause” removal protections for inspectors general be reconsidered.
Another, complementary reform would be to limit the inspectors general to a fixed term of years in office. While this is in principle distinct from the “for-cause” reform, for the practical and legal reasons discussed below “for-cause” removal and term limitations have come to be treated as a package.
Removal Only for Cause
Curbing the president’s removal power by requiring cause for firing an inspector general is a reform proposal at least three decades old. In his landmark 1993 book on the inspectors general, Monitoring Government: Inspectors General and the Search for Accountability (Brookings Institution), Professor Paul Light noted that limiting the President’s power to remove inspectors general, to allow removal only “for cause” (such as misconduct by an IG), received substantial (but not overwhelming) support from former inspectors general who were polled. Id. at 231-32.
Congress nearly adopted this protection in 2008, as part of the Inspector General Reform Act 0f 2008, Pub. L. No. 110-409. The version of the bill passed by the House would have limited the grounds for the President’s removal of inspectors general to the following grounds for cause:
(1) Permanent incapacity;
(2) Inefficiency;
(3) Neglect of duty;
(4) Malfeasance;
(5) Conviction of a felony or conduct involving moral turpitude;
(6) Knowing violation of a law, rule, or regulation;
(7) Gross mismanagement;
(8) Gross waste of funds; and,
(9) Abuse of authority.
The accompanying House report noted “campaigns by [agency] management to remove Inspectors General who are aggressive in their investigations,” which could “jeopardize the independence of the Inspector General,” and noted examples of instances (including at the Department of State) where close ties with agency leadership had reportedly compromised the inspectors general’s independence.
But the version of the bill which passed the Senate – and the final legislation – eliminated the “for cause” requirement. The final legislation merely amended Section 3 of the Inspector General Act to require that the President’s writing to Congress setting forth “the reasons for any . . . removal or transfer” of an inspector general (already a requirement) be sent not later than 30 days before the removal or transfer.
In the Senate report which accompanied a companion bill in the Senate, S. 2324, the Senate Committee on Homeland Security and Governmental Affairs, chaired by Senator Joe Lieberman (D-CT), explained that the Senate had not embraced a “for-cause” requirement for removal because “the Inspectors General were divided over proposals to create fixed terms for IGs with dismissal only ‘for cause.’”
But the GAO report cited by the Senate committee – a summary of an informal panel of experts convened by GAO at the Senate committee’s request – did not say that Congress should abandon a “for cause” requirement. Instead, the GAO summary report suggested that more “for cause” grounds should be added to the list in the House bill – though the GAO was referring to an earlier House bill, HR 2489 in the 109th Congress, which would have imposed narrower “for-cause” grounds for removal. The 2006 GAO report (Number 06-931SP) stated, at pages 5-6:
- Removal of IGs with a term of office and with removal for cause as specified by the House bill could be a problem if the administration had to replace an IG for reasons other than those specified in the bill, most notably poor quality work or incompetence.
- The question really is how to best achieve IG independence while maintaining the ability of the administration to remove a poor-performing IG. This may require broader conditions for removal than those in the House bill.
- IGs need to be accountable for doing a good job. In the best environment, the IG should focus on fraud, waste, and abuse and not be in a situation that pits the IG against the head of the agency. The IGs need to be independent, but removal for cause, as provided in H.R. 2489 [an earlier, more limited bill from 109th Congress], limits the agency head and is not based on the quality of the IG’s work on audits and investigations.
- A term of office with removal for cause could help relieve immediate pressures of removal, but such independence could also lead to an IG who is isolated from the agency head and the rest of the agency. A successful relationship between the IG and the head of the agency is key for the IG concept to work, and it is the responsibility of the administration to see that all new agency heads know about the independence requirements of their IGs. Also, even with a term of office and removal for cause, a President and an agency head could take steps to neutralize the effectiveness of an IG, whether justified or not.
- A term of office with removal for cause does provide needed protection to an IG where the relationship with the agency head is under stress, such as when the IG is investigating the agency head. In this situation, removal for cause would provide the IG with protection against being fired by the agency head. The question would become whether the IG had justification for the issues identified during an investigation of the head of the agency. Currently, the IGs look to the Congress to support them during such times.
- Based on this 2006 GAO report – which on balance argued in favor of “for-cause” removal protection, in the context of better communications between inspectors general and agency leadership – the Senate proceeded with a version of the bill that dropped the “for cause” requirements in the House bill. The Senate therefore rested only on the 30-day advance notice requirement, though the Senate committee report noted that the requirement “does not alter the President’s ultimate authorities with respect to Executive Branch employees.”
In a different part of the same committee report, however, at pages 8-9, the Senate Committee on Homeland Security and Government Affairs set forth the committee’s understanding that inspectors general would not be removed except for cause, and not for political reasons:
The Committee intends that Inspectors General who fail to perform their duties properly whether through malfeasance or nonfeasance, or whose personal actions bring discredit upon the office, be removed. The requirement to notify the Congress in advance of the reasons for the removal should serve to ensure that Inspectors General are not removed for political reasons or because they are doing their jobs of ferreting out fraud, waste and abuse.
The Senate thus left a very confusing legislative history: the Senate eliminated the House provision limiting the President to “for-cause” removal of inspectors general, relying on a GAO report which argued for the opposite outcome, and with a Senate committee report which stated that Congress’ intent was that removal should be only for cause.
Although Congress did not pass the “for-cause” protection in 2008, Senator Charles Grassley, Republican of Iowa and one of Congress’ most vocal supporters of inspectors general, has argued that the Inspector General Reform Act of 2008 did in effect raise the bar for removal. In a May 18, 2020 letter to President Trump regarding the removal of Steve Linick at the State Department, which Trump said was grounded in a loss of confidence in Linick, Senator Grassley wrote:
As mentioned in previous letters, Congress’s intent is clear that an expression of lost confidence, without further explanation, is not sufficient to fulfill the requirements of the IG Reform Act. This is in large part because Congress intended that inspectors general only be removed when there is clear evidence of unfitness, wrongdoing or failure to perform the duties of the office. The Senate Committee Report on the Inspector General Reform Act of 2008 provides further clarity regarding the high bar that is expected in cases of removal. In that report, the Committee expressed its intent that, “Inspectors General who fail to perform their duties properly whether through malfeasance or nonfeasance, or whose personal actions bring discredit upon the office, be removed.” The report also states that, “[t]he requirement to notify the Congress in advance of the reasons for the removal should serve to ensure that Inspectors General are not removed for political reasons.”
On its face, Senator Grassley’s position seems at odds with the history of the Inspector General Reform Act, because as noted the for-cause protection was explicitly dropped from the Senate version of the bill. One way to reconcile Senator Grassley’s position with the current, limited language of the Inspector General Act may be to see Grassley’s position as one based on process not substance – from his perspective, because the current law allows members of Congress 30 days to object, the process is protection enough to ensure that an inspector general is not removed on political grounds alone.
Senator Grassley’s position regarding the sufficiency of cause – that it is not enough to warrant removal that a President has “lost confidence” in an inspector general – is at odds with the decision of the D.C. Circuit in the Galpin case, discussed above and decided after the 2008 legislative reforms. There, the D.C. Circuit held that President Obama’s statement that he had lost confidence in Inspector General Galpin was enough to meet (in the court’s words) the “minimal statutory mandate that the President communicate to the Congress his ‘reasons’ for removal.”
As noted, White House Counsel Pat Cipollone relied heavily on the D.C. Circuit’s decision in Walpin in arguing that Trump’s stated reason for removing Inspectors General Atkinson and Linick (for a “loss of confidence”) was legally sufficient under the Inspector General Act. The D.C. Circuit’s extended discussion of the broader reasons for Galpin’s removal – reasons that went to Galpin’s competence – suggested, though, that neither the court nor Senator Grassley favor removal of an inspector general for political reasons alone.
While the White House has long argued that it would violate constitutional separation-of-powers principles for Congress to hamstring the President’s right to remove inspectors general, the Supreme Court has explicitly held that Congress may, as a constitutional matter, require the President to remove principal officers only for cause:
Since 1789, the Constitution has been understood to empower the President to keep these officers accountable—by removing them from office, if necessary. See generally Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). This Court has determined, however, that this authority is not without limit. In Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), we held that Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good cause. – Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, 483, (2010).
Since the Supreme Court’s decision in Free Enterprise Fund, however, the composition of the Court has shifted to the right, and a pending decision in the case of Seila Law LLC v. Consumer Financial Protection Bureau may redraw the constitutional landscape. In that case, in which arguments were held on March 3, 2020 (summarized by Amy Howe), the Supreme Court has been asked to overrule the 1935 decision in Humphrey’s Executor and hold unconstitutional a statutory restriction on the President’s power to remove the CFPB director – who may be removed only for cause, i.e. “for inefficiency, neglect of duty, or malfeasance in office.” Based on this pending separation-of-powers case, some have warned that if Congress imposes overly restrictive limits on the President’s ability to remove inspectors general, those limitations may be held unconstitutional as a violation of the separation-of-powers doctrine.
Create a Fixed Term of Office
One problem with limiting the President’s power to remove inspectors general is that they have no fixed term of office, so that if the IGs cannot be readily removed from office they may in practice serve forever. A solution for this – a way to temper the constitutional weaknesses of curbing the President’s power of removal – might be to limit inspectors general to a fixed term of years. This helps explain why the two reforms (removal only “for cause” and term limits) have come to be dealt with as a package, as the GAO and Senate reports quoted above reflect.
Paul Light’s 1993 book on the inspectors general reported that the proposal to establish a fixed term of office for inspectors general received relatively weak support among former inspectors general, as a measure to strengthen the IG function. This was not surprising, since inspectors general benefit from accumulated experience and knowledge of their agencies, and abruptly ending their time in office because of a statutory term limit can disrupt the work of their offices – and exacerbate the problem of vacate inspector general posts that have gone unfilled.
In 2007 testimony to the Senate Homeland Security and Government Affairs Committee, then-Comptroller General David Walker of GAO summarized the views of the panel of experts convened by GAO (and quoted above) on term limits:
The majority of the panel participants did not favor statutorily establishing a fixed term of office for IGs. The reasons included the panelists’ belief that the proposal could disrupt agency management and IG relationships, and that agency flexibility is needed to remove a poor-performing IG if necessary. On the other hand, a statutory term of office and removal only for specified causes was viewed positively by some panelists as a means of enhancing independence by relieving some of the immediate pressure surrounding removal without appropriate justification.
GAO-07-1089T (July 7, 2007). Walker’s testimony thus highlighted the management disruption that a fixed term limit can cause, but acknowledged that taking the reforms as a package – removal only “for-cause” and a term limit – could enhance inspector generals’ independence.
The House of Representative’s failed effort to include “for-cause” removal protections in the Inspector General Reform Act of 2008 were discussed above. As a recent Congressional Research Service report noted, when the House passed its version bill (H.R. 928, 110th Congress), that bill also provided that inspectors general would serve for fixed seven-year terms. But the Senate elected not to adopt this term-limit reform either, citing the 2006 GAO report discussed above – though again, that earlier GAO report (quoted at length above) actually supported a term-limit reform.
Current Legislative Proposals
There are several pending bills and resolutions which would address the independence of the inspectors general. Some of the most prominent:
- H.R. 6668 & S. 3664 – Inspectors General Independence Act of 2020: These are identical bills, introduced in early May 2020 in the House (by Rep. Jim Cooper (D-TN)) and the Senate (by Sen. Murphy (D-CT)). The bills would permit an inspector general to be removed before the expiration of his term only for permanent incapacity, inefficiency, neglect of duty, malfeasance, or conviction of a felony or conduct involving moral turpitude. The bills would provide for a seven-year term of office for each inspector general; an individual could serve more than one term. Any individual newly appointed to fill a vacancy would serve for a full seven-year term. The bills remain pending before the House Committee on Oversight and Reform and the Senate Committee on Homeland Security and Governmental Affairs, respectively.
- H.R. 6984 – Introduced by Rep. Maloney (D-NY) on May 22, 2020, this bill would allow removal of inspectors general only for cause.
- H.R. 1847 – This bill would require the President to notify Congress when the President places an inspector general on “nonduty” status. If the President fails, within 210 days, to nominate a new inspector general, the President must communicate the reasons why to Congress, and set a target date for a nomination. The bill passed the House on a voice vote in July 2019, and remains pending in the Senate. Representative Harley Rouda (D-CA) described it on the House floor as a “bipartisan bill, introduced by Representative Ted Lieu and Representative Jody Hice, [which] would . . . address the disturbingly slow nomination of IGs that have been the norm across multiple administrations.”
- H.R. 6800 – HEROES Act: This major legislation would provide the fourth package of coronavirus-related relief. The HEROES Act was introduced on May 12, 2020 and passed the House three days later; the bill remains pending in the Senate. It would provide roughly $200 million in additional funding to various offices of inspectors general across the government. Sections 70102-70104 of the bill, as passed by the House, would incorporate many of the reform provisions regarding inspectors general put forward by the other pending legislation outlined above: removal only for cause, a seven-year term limit, and a requirement that the President provide Congress with an explanation for prolonged vacancies.
Outside Congress, law professor Saikrishna Prakash of the University of Virginia has suggested another possible pathway to reform: creating a “chief inspector general” who would have the power to appoint and remove other inspectors general. While this approach would help insulate the inspectors general from presidential removal, it could also dilute the accountability of inspectors general, both to their agencies and to the public.
Given the long history behind the main proposals pending before Congress – to require that removals be only for cause, with a term limit on inspectors general – it is more likely that those proposals would be passed by Congress in response to the Trump administration’s wave of actions against the inspectors general.
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Authors: Christopher Yukins is the Lynn David Research Director in Government Procurement Law and co-director of the George Washington University Law School’s Government Procurement Program; Jessica Tillipman is Assistant Dean for Field Placement and Professorial Lecturer in Law at the George Washington University Law School. Together they teach a popular course on anti-corruption law at GW Law.