Andrew Rudalevige
This month saw the latest salvo in the Trump administration’s war against Congressional oversight – but this time, for once, it was fired from Capitol Hill. Even more surprisingly, it came from the Republican Senate, which despite its occasional murmurings of concern about the president’s attacks on legislative prerogatives has generally empowered them. Most notably, of course, all Republican senators voted against the “obstruction of Congress” article of impeachment approved by the House of Representatives in December 2019.
On June 4, Sen. Charles Grassley (R-IA) said he would block the confirmation of two Trump nominees—including the new head of the National Counterterrorism Center — until the administration provided an adequate explanation for the recent firings of two inspectors general (IG). Inspectors general were created in the Cabinet departments “without regard to political affiliation” in the aftermath of the 1970s Watergate scandal, as a way of shoring up government integrity. They were designed to both provide independent oversight and to provide a sort of fire alarm alerting Congress to issues it needed to be aware of. Their reports go directly to Congress, and over time legislators have enhanced IGs’ independence and authority, as well as their population: there are now 74 of them across the government. As Nadia Hilliard writes, “Their success varies, but countless IG reports have prompted significant agency reforms, prosecutions and policy changes.”
Despite this history Michael Atkinson was fired as IG for the Intelligence Community on April 3, presumably in retaliation for having passed along to Congress – as the law required him to — the whistleblower complaint concerning Trump’s now infamous call with Ukraine president Volodymyr Zelensky in July 2019. Steve Linick, IG at the State Department, was removed on May 15, after having opened several investigations into the behavior of Secretary of State Mike Pompeo, most notably for the secretary’s actions in approving arms sales to Saudi Arabia despite legislative rejection of such transactions. Pompeo was also alleged to have used government employees for personal errands; dating back to his time directing the CIA his security staff apparently referred to themselves as “Uber Eats with guns.”
Those actions, extraordinary in their own right, were at most half the story. “I think we’ve been treated very unfairly by inspector generals,” the president has proclaimed. Thus in late March, he issued a signing statement asserting his right to ignore language in a law creating a new inspector general required to report directly to Congress about irregularities in spending some $2 trillion in coronavirus relief funds. He then nominated White House aide Brian Miller to fill the position.
A week after Atkinson’s removal, Trump demoted longtime IG Glenn Fine, then at the Department of Defense, just after he had been named to run another oversight body linked to coronavirus spending. Fine soon left government service. The new acting IG at Defense was also the inspector general at the Environmental Protection Agency – thus ensuring that neither key bureau had a full-time IG.
On May 1, the deputy inspector general at Health and Human Services was passed over for the department’s top post. She had issued a report critical of the government’s pandemic preparedness which was publicly attacked by the president. On May 16, the acting IG at Transportation, investigating potential favoritism in grant award decisions by Secretary Elaine Chao, was likewise sidelined. Trump then promoted a political appointee – who also remained in his first job, reporting to Chao – to serve as the acting IG at Transportation. Thus he was tasked with independently investigating the person to whom he directly reported, creating a conflict of interest very unlikely to unearth conflicts of interest.
All these maneuvers were consistent with President Trump’s visceral aversion to oversight and White House expectations of what one former aide called the requirement to “out-loyal everyone else.” Still, his actions were within the letter if not the spirit of the law. “Everybody agrees that I have the absolute right to fire the inspector generals,” Trump said. While there are many executive branch employees not hired, and who generally cannot be fired, by the president (despite Senate Majority Leader Mitch McConnell’s claim to the contrary), IGs are indeed “line officers” subject to presidential control.
However, Congress has placed two constraints on their removal: that the president give 30 days notice of doing so, and provide an explanation for why he is taking such action. In the Atkinson and Linick cases, Trump did not bother to do even this. His explanation was simply that he no longer had “the fullest confidence” in them. A letter from the White House counsel’s office spent nearly five pages avoiding the question.
Grassley’s “hold” on the two appointees aimed to force the administration to go beyond the letter of the law to provide an actual explanation – as President Obama did in 2009 (again, under some congressional pressure) when he removed an IG. And this pushback is important, if only because the letter of the law has proved inadequate in the face of presidents willing to make imaginative claims that violate the spirit of that law.
Indeed, many of the Trump administration’s controversial executive actions have seized on vague language or loopholes in statute. For example, the president’s “emergency” on the southern border enabled him to free up funds to build “the wall” despite Congress’s refusal to do so. The National Emergencies Act (NEA) requires that the president declare an emergency – but not that there actually be one.
Similarly, the arms sales noted above were likewise implemented by invoking a provision of the Arms Export Control Act that allowed an executive waiver in cases of emergencies threatening U.S. national security interests. Here too many felt the claimed emergency (Iran) did not warrant disregarding congressional objections. Even high-level Defense, State, and intelligence officials had strong doubts the waiver was justified.
Yet other examples came from the trade arena. Trump invoked the International Emergency Economic Powers Act to threaten Mexican imports. And the administration used Section 232 of the Trade Expansion Act to claim yet another emergency — that steel and aluminum from Canada and other allies was being imported “under such circumstances as to threaten to impair the national security.” That impairment was barely justified.
Legislators have found themselves at a structural disadvantage in seeking to overturn these disingenuous claims to “emergency.” For example, the NEA originally allowed legislators to cancel emergency powers with a concurrent resolution — a legislative vehicle that does not require presidential signature to become effective. But a 1983 Supreme Court ruling said such measures were not legally binding. A 1985 amendment to the NEA fixed that problem — but by requiring presidential signature, which also means the possibility of presidential veto. Trump has twice vetoed resolutions to rescind the border emergency declaration, and Congress has not been able to muster the two-thirds majority needed to override him.
There are discussions about reforming these laws to re-empower a congressional majority (by having national emergencies expire unless they are affirmatively renewed by legislative vote, for instance). But short of that, the informal enforcement of longstanding norms – such as the nonpartisan independence of the inspectors general — is critically important. As Sen. Grassley noted, “Without sufficient explanation, the American people will be left speculating whether political or self-interests are to blame.” (Especially since they probably are.)
Longer term, various bills have been submitted to protect the oversight provided by the inspectors general. Congress probably can’t make it impossible for the president to fire an IG, as noted above. But legislators could require that IGs be fired only for good cause, for instance, or limit who could be appointed to replace them without Senate confirmation. Reporting requirements could be expanded and IGs given additional funding to safeguard their independence. Watchdog groups have cheered this on, arguing that “to operate effectively, IGs need independence both from the agency they are overseeing, and from the president.”
Pushing back against presidential power does require careful legislative craftsmanship. But even more, it requires bipartisan engagement and institutional pride. Given that those have long been absent from the halls of Congress, it is good to see some signs of revival. Pushing the administration to act in good faith when it invokes delegated discretion is crucial to that. Sen. Grassley’s action is a small step, perhaps – but a tangible one, and very much in the right direction.
