President Trump has fired more inspectors general than any President. Several of the fired inspectors general have led investigations that were way too close to the President.
These include most notoriously Michael Atkinson, the inspector general for the national intelligence community who was a whistleblower in the Ukraine scandal. Attorney General William Barr, ever supportive of the political agenda of President Trump, went so far as to make misleading public statements about unfounded allegations of misconduct against Atkinson to justify the firing. Barr has falsely accused Atkinson of misconduct in order to justify his firing and to excuse retaliation against Atkinson for fulfilling his duty as an inspector general to communicate about the Ukraine matter with Congress.
President Trump also fired Steve Linick, inspector general for the State Department. Linick apparently was investigating the conduct of Secretary of State Mike Pompeo, as well as the purported justification for a Saudi arms deal.
Three other acting inspectors general were also dismissed by Trump: Glenn Fine (Department of Defense), Christi Grimm (Department of Health and Human Services), and Mitch Behm (Department of Transportation). Many of these firings were announced late on Friday afternoon in the “news dump” that was also used last May by Trump and Barr to fire the U.S. attorney for the Southern District of New York who was investigating matters too close to President Trump.
I will not reiterate here the likely motives President Trump had for each IG firing. That ground has been thoroughly covered elsewhere. Obviously, this is a problem that strikes right at the heart of our democracy, because a President who can stop a legitimate investigation of improper and potentially illegal conduct in his own administration can effectively place himself above the law. It is also and a problem that could easily outlast the Trump Administration. I will address here what Congress can do about this problem to make sure that, in the future, this never happens again.
The most straightforward answer is for Congress to pass a statute providing that inspectors general serve for a fixed term, perhaps five to ten years, and can only be fired for cause, with “cause” being determined after an investigation by the already existing Council of Inspectors General on Integrity and Efficiency. This would prevent the President from firing an inspector general for improper reasons including, for example, firing an inspector general for investigating people or conduct politically close to the President.
There are legitimate questions about the constitutionality of such a statute because it constrains the President’s power to remove federal officers appointed by the President. The Supreme Court has held that Congress cannot constrain the Article II power of the President to remove a postmaster appointed by the president, in Myers v. United States (1926), and most recently the power of the president to remove the Director of the Consumer Financial Protection Board, Seila Law v. CFPB (2020). On the other hand, the Supreme Court has upheld a statute providing that members of the Federal Trade Commission can be removed only for cause, Humphrey’s Executor v. United States (1935), and perhaps most important the Court upheld the now-expired post-Watergate independent counsel statute that prevented the president from firing an independent counsel, Morrison v. Olson (1988).
Of the federal officers that have been the subject of these Supreme Court “removal power” cases, the independent counsel is the closest analogy to an agency inspector general. The Court emphasized in Morrison the limited scope of the independent counsel’s duties. As we learned from Ken Starr, who was appointed under that statute, these duties can involve investigating the President himself. If Congress can provide for removal only for cause in the case of an independent counsel investigating multiple parts of the executive branch, including potentially the White House staff and the President, Congress presumably can provide for removal only for cause in the case of an inspector general investigating allegations of waste, fraud, and abuse only within a single agency.
But the future of Supreme Court case law on removal power, and the closely related “unitary executive” theory, is uncertain. Congress should prepare for this uncertainty by providing “belt and suspenders” to assure that an investigation begun by an inspector general will continue even if the President tries to fire the inspector general. First, Congress should provide that an inspector general whom the President attempts to fire remains in office and shall continue all ongoing investigations unless the inspector general resigns or the President seeks a court order affirming the firing and there is a final unappealable federal court order that the President has the power to fire the inspector general. Second, Congress should amend the obstruction of justice statute to explicitly state that it is a federal crime for any federal employee to interfere with an investigation conducted by an inspector general. This will deter other appointees of the President from doing such things as locking the inspector general out of his office or confiscating his records. Third, if the President attempts to remove an inspector general, the inspector general shall be required within a very short time to deliver to Congress all of the inspector general’s electronic and other records pertaining to ongoing investigations, with these records being delivered to the chairman and ranking member of House and Senate committees having oversight over the particular agency. Fourth, Congress should make provision for the continuation of investigations in the event an agency inspector general is removed by the President without cause. Congress could establish an office within Congress itself that would take over the investigation. In addition, or alternatively, if the post-Watergate independent counsel statute were to be reenacted, an independent counsel could be appointed and the inspector general’s investigations could be turned over—with all of the relevant records—to the office of the independent counsel.
Inspectors general are charged with investigating waste, fraud, and abuse within executive branch agencies. Waste, fraud, and abuse in our government are intolerable whether the President wants to tolerate it or not. The President’s powers under Article II do not include the power to orchestrate a cover up by firing an inspector general. Indeed, if the underlying conduct being investigated is criminal, such firings in the middle of investigations could themselves be criminal obstruction of justice. As explained in Part II of the Mueller Report, obstruction of justice statutes and other criminal laws apply to the President in his exercise of Article II powers. The Supreme Court recently confirmed in Trump v. Vance (2020) that the President is subject to the criminal process, which means that criminal laws apply to the President as they do to everyone else.
For a President to fire an inspector general to obstruct an investigation is intolerable. Congress must enact the necessary legislation to make sure that unjustified firings of inspectors general never happen again.