This action comes one week after Trump’s claim of “presidential supervision” over the Treasury Department’s pandemic recovery watchdog, an ominous attempt to limit independent oversight of administration actions. Allowing vacancies is one way to do that. Fourteen of 75 inspector general positions are vacant, according to the Council of the Inspectors General on Integrity and Efficiency. Trump nominated five on Friday.
When the president approved legislation creating a $2 trillion relief effort, his March 27 signing statement indicated he believes the Constitution grants him power to block reports to Congress from the Special Inspector General for Pandemic Recovery (SIGPR), which was established by the law.
Trump’s statement said “my Administration will not treat” the special inspector general’s office as having the power “to issue reports to the Congress without the presidential supervision required by the Take Care Clause” of the Constitution.
The special inspector general is charged with auditing and investigating matters related to the $500 billion in loans and investments Treasury can make as part of the stimulus. Trump’s nomination of Brian D. Miller for the job must be confirmed by the Senate.
Any effort to control the special inspector general could generate a serious clash between Congress, which overwhelmingly approved the bipartisan legislation, and Trump over the power of all inspectors general, known as IGs, who audit and investigate federal agencies.
Trump’s endeavor to control what the special inspector general reports to Congress is not unique. It is another in a series of moves by this administration, and others, to limit the bearers of bad news.
●On Tuesday, Environmental Protection Agency Administrator Andrew Wheeler, in an unusual public action, issued a news release “formally requesting the EPA IG rescind” a carcinogenic emissions report because of its “tone and substance.”
●In January, Glenn A. Fine, the acting Defense Department inspector general, who now also chairs a separate panel of pandemic spending watchdogs, told Congress about the Pentagon’s refusal to cooperate with his whistleblower investigations.
He complained about “a small but disturbing trend” by Pentagon officials “not taking disciplinary action in substantiated cases, without adequate or persuasive explanations” in cases of retaliation by supervisors against staff whistleblowers. “This is troubling. . . . Failure to take action also sends a message to agency managers that reprisal will be tolerated, and to potential whistleblowers that the system will not protect them.”
Separately, on Monday, Fine was appointed to chair the Pandemic Response Accountability Committee formed by the council representing all inspectors general. The committee will look at waste, fraud and mismanagement in the pandemic relief programs government wide.
●In November, an EPA’s inspector general’s memo said a top agency official “offers free rein to agency staff to refuse OIG (Office of Inspector General) requests for information.”
●In February 2019, congressional Democrats protested Education Department “efforts to compromise the integrity of the OIG.” They said a plan to replace its acting inspector general, following demands that she drop an investigation or change its focus, represents “a clear attempt to violate the statutory independence” of the inspector general’s office.”
●In June 2018, Peter O’Rourke, a former acting Veterans Affairs secretary, displayed his mistaken understanding of the statutory independence provided inspectors general during a dispute with IG Michael J. Missal. Missal had complained the department’s whistleblower protection office was not providing requested information. O’Rourke wrote an intimidating letter to Missal that said, “I am your immediate supervisor. You are directed to act accordingly.”
Generally, disputes involving inspectors general are limited to the agency level. But Trump initiated a row involving the special inspector general’s reporting responsibility, drawing a sharp retort from Capitol Hill.
“The use of a signing statement by this and past presidents to undermine the ability of Inspectors General to provide Congress statutorily-required information is troubling and unacceptable,” said a letter to Treasury Secretary Steven Mnuchin from Democratic Sens. Sherrod Brown (Ohio), Ron Wyden (Ore.) and Charles E. Schumer (N.Y.), the party’s leader in the chamber. “Faithful application of the law is not optional. It is a requirement.”
The phrase “faithful application of the law” refers to the constitutional article Trump cited. It says the president “shall take Care that the Laws be faithfully executed.” Rather than giving the White House the power to thwart Congress, constitutional scholars say this provision means presidents should enforce laws whether they like them or not.
“The president clearly wants to operate without accountability and oversight,” said Rep. Jamie B. Raskin (D-Md.), who also is an American University constitutional law professor. “When he was asked the question, who will conduct oversight, he said he will conduct oversight of himself. That is not the meaning of checks and balances in America.”
Inspectors general are hybrid creatures who are at once a part of the agencies they investigate, while maintaining an independent status. The law governing them makes it clear they have a dual and simultaneous reporting responsibility to executive branch agencies and Congress. That means they can report to Congress without presidential supervision or approval.
“In order to create independent and objective units,” the Inspector General Act says about the watchdog offices, they must keep agency leaders “and the Congress fully and currently informed about problems and deficiencies.”
Given that language, “it's hard for me to believe,” Raskin said, “the administration would try to assert an extravagant constitutional claim in the middle of a national public health and economic crisis. Every American has an interest in seeing that there is proper accountability for every dollar that is spent.”