Shortsighted on Oversight

The special counsel investigation into Russian meddling in U.S. elections continues to attract politically charged pronouncements and calls for action. As part of the recent debate, government oversight institutions have been invoked by national and party leaders. However, the discussion in Washington, DC, and in the media is hobbled by incomplete knowledge of the various oversight tools and options available for major investigations.

President Donald Trump recently tweeted his displeasure with Attorney General Jeff Sessions for asking the Department of Justice Inspector General to investigate charges of misconduct involving the Department’s examination of Russian meddling. The President instead wanted agency lawyers, not the Inspector General, to handle the investigation.

In his tweet, President Trump posed the question, “Isn’t the I.G. an Obama guy?”

The President’s tweet betrays a fundamental misunderstanding about the role of inspectors general and other executive branch oversight and accountability offices. The Department of Justice Office of Inspector General is independent of both the federal agency it oversees and the White House. Yes, the current Inspector General, Michael E. Horowitz, also served in the position under President Obama, but the office is not political and should not be prejudged as such without evidence. The tradition of independence from both the agency and the Administration allows the office to remain credible when political players are under scrutiny. It is disappointing that the President decided to throw partisan barbs at the Inspector General, before he has even finished his various investigations of interest to the President.

Our nation’s 73 federal inspectors general are tasked with rooting out waste, fraud, and abuse, helping to oversee hundreds of billions of dollars in spending. Their findings and recommendations represent a “to-do list” for Congress as it considers reforms to government programs and changes to federal law.

The inspectors general also play a critical oversight role through careful and detailed examinations of potential wrongdoing by government officials. The Department of Justice investigation that was criticized in the President’s tweet fits squarely into the normal role of the inspector general.

Congress, in a bipartisan fashion, has long supported the inspectors general, and specifically their role as independent watchdogs outside of the political fray. The original Inspector General Act of 1978 clearly mandated that an inspector general would not be beholden to a presidential administration, but instead chosen “without regard to political affiliation.” Unlike other Senate-confirmed agency heads, inspectors general remain on the job when the administration ends. More recently enacted legislation further strengthened and detailed inspector general independence. For example, the inspectors general now have more budget independence, as well as clearer authority to access documents and information free from agency interference.

In a strong sign that Congress understands the need for effective government oversight, Members from the President’s own party voiced support for the Department of Justice Inspector General after the Trump tweet. Representative Trey Gowdy, the chairman of the Oversight and Government Reform Committee, the principal oversight committee of the House, said of Michael Horowitz, “I have complete confidence in him and hope he is given the time, the resources and the independence to complete his work.” Republican Senator Chuck Grassley, Chairman of the Judiciary Committee, expressed a similar view.

A second, separate development also shows the need for political leaders to better understand federal oversight institutions. Republican Members of Congress have been calling for the appointment of a second special counsel to investigate the FBI’s handling of the Clinton email probe, the start of the “Trump-Russia probe,” and Foreign Intelligence Surveillance Act warrants targeting Carter Page. Attorney General Sessions has said that he is seriously considering the appointment.

Special counsels definitely have their place, but should be reserved for situations where other oversight bodies would not be effective or independent. These requests by Congress seem to ignore other, existing avenues for conducting major investigations already within the Department of Justice. In this case, existing oversight mechanisms are likely up to the task.

For example, the Department of Justice Inspector General is already examining many of these key questions. However, Chairman Gowdy noted that there may be “witnesses outside the reach of the IG” (the Justice Department Inspector General has limitations in its ability to investigate agency attorneys and non-government witnesses). This is an important point, and Congress should revisit whether to grant the Inspector General more full investigative authority, especially if this lack of authority is impeding investigations, but it is not clear if that is the case here.

DOJ is also home to the Office of Professional Responsibility, which reports directly to the Attorney General and is “responsible for investigating allegations of misconduct involving Department attorneys” and law enforcement personnel that “relate(s) to the attorneys' exercise of authority to investigate, litigate, or provide legal advice.” It is worth noting, though, that the Office of Professional Responsibility lacks the level of independence of the Inspector General.

One effective option could be for the Inspector General and Office of Professional Responsibility to team up, as they have in past investigations. For example, the two worked together during a 2006 investigation of removal of U.S. Attorneys and in a 2008 probe into allegations of politicized hiring. The two oversight entities complemented each other’s jurisdiction, authorities, and skills, resulting in very useful reporting.

The ongoing discussion on investigations also underscores that effective oversight needs adequate resources and authorities. Inspectors general need real support from the Administration and Congress to meet current oversight resource challenges. For example, the current investigation of surveillance warrants by the Department of Justice Inspector General will likely prove to be a major effort, with many deep dives into technical questions. Congress should also grant the Department of Justice Inspector General full authority to investigate the officials and staff now within the purview of the Office of Professional Responsibility.

Congress and the executive branch have many oversight tools available for delving into matters of high importance. Awareness of the different institutions would allow for the best use of the right investigative tool for the job at hand.