Jack Goldsmith, a professor at Harvard Law School and a senior fellow at the Hoover Institution, was head of the Justice Department’s Office of Legal Counsel in 2003 and 2004.
The modern inspector general dates to 1978, when Congress gave many inspectors general extraordinary internal investigative powers, required them to be confirmed by the Senate and tasked them with reporting to Congress. All this was controversial as a constitutional matter. President Jimmy Carter signed the 1978 law even though his Justice Department concluded that the dual reporting obligations to the executive branch and Congress “violate the doctrine of separation of powers.”
Over the decades, constitutional concerns have faded as inspectors general have proved their worth in rooting out agency waste, fraud and abuse, and in conducting credible investigations of controversial agency actions. The 2003 Central Intelligence Agency report on black sites, the 2012 General Services Administration report on federal employee extravagances, the 2012 Justice Department report on the “Fast and Furious” gun-running program, and the 2019 Justice Department report on the investigation of the Trump campaign are exemplars that led to important reforms.
Even defenders of the “unitary executive” have come around. During his first stint as attorney general, from 1991 to 1993, William P. Barr disfavored inspectors general and tried to “curtail their authority." But in 2018, Barr stated that he had “become more sanguine” about the institution, which he said serves a “critical function in the government.” Barr disagreed with some of the conclusions in the Trump campaign investigation report but was complimentary of Inspector General Michael Horowitz’s overall effort.
But inspectors general are not perfect. Some are more competent than others, some make mistakes or show excessive zeal, and they all need accountability. The ultimate form of accountability is the president’s ability to remove them as long as he sends his “reasons” for doing so to Congress.
Norms have prevented presidents from exercising this authority too often, but the legal bar to doing so is low. Ronald Reagan fired every inspector general when he took office but rehired some after a congressional outcry. The only reason Barack 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 that IG. Trump mimicked Obama’s language in letters to Congress announcing his firing of Linick and Michael Atkinson as inspector general of the intelligence community.
It is understandable, therefore, that Congress would try to make it harder for the president to fire inspectors general. A bill introduced by Rep. Carolyn B. Maloney (D-N.Y.) provides that inspectors general can be removed only for one of nine specified grounds, including “neglect of duty,” “malfeasance,” “gross mismanagement,” “abuse of authority” and “inefficiency.”
There are at least three problems with this “for cause” approach. First, it might be unconstitutional to limit the president’s removal power in this way. Second, a determined president who wants to terminate a pesky inspector general will find a way to satisfy one of these open-ended criteria.
And third, the focus on firing does not address Trump’s larger manipulation of vacancies in the inspector general ranks. Three of Trump’s five recent terminations involved not firings of Senate-confirmed officials, but rather the removal of non-confirmed inspectors general serving in acting roles until a successor was confirmed. Trump has thus far exploited the permissive criteria in the Federal Vacancies Reform Act to replace four of the five removed officials with ones deemed generally more congenial.
A better mechanism for protecting the independence of inspectors general would focus on how a president can fill vacancies. Congress should limit the president’s discretion to temporarily fill vacant slots to someone either already confirmed for an inspector general position in another agency, or to a senior career official in the inspector general office in the agency with the vacancy.
This approach would make it harder for a president to install a loyalist as acting inspector general pending a Senate-confirmed replacement, and thus deter presidents from firing or removing inspectors general in the first place. It would avoid every objection raised in a recent White House letter to Congress defending its prerogatives in this area. And it is clearly constitutional: The Justice Department’s Office of Legal Counsel has, in administrations of both parties, confirmed that Congress can limit the president’s vacancies options in this way. As Congress debates the president’s efforts to undermine the independence of inspectors general, it should focus on closing the vacancies loophole.