By Sara Kropf
On May 15, 2020, President Trump fired the State Department Inspector General and replaced him with a new Inspector General who has close ties to Vice President Mike Pence. Steven Linick had been the head of the State Department’s Office of Inspector General (OIG) since 2013.
Is that legal? Yes.
Is it a political move? Yes.
Are OIGs political? That’s an open question.
We represent targets of OIG investigations all the time; we literally wrote the (e)book on defending these investigations.
Who Appoints Inspectors General?
Under the Inspector General Act of 1978, each federal agency has an OIG, headed by an Inspector General (IG). According to 5 U.S.C. § 3, the IG “shall be appointed by the President, by and with the advice and consent of the Senate.” It goes on to say that the appointment shall be made
without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations.
Most IGs are appointed by the President. Some IGs, however, work within a “designated federal entity” (like the FTC and the FCC). These designated federal entity IGs are appointed by the head of the agency, not the President.
Who Can Fire an IG?
Not much mystery here. The IG Act states that “[a]n Inspector General may be removed from office by the President.”
So, President Trump had the authority to remove Mr. Linick from office.
However, if the President removes an IG, then the “President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer.”
As far as we know, the President did not inform Congress of any reason for the removal.
The IG Act doesn’t contain any standard for removal, such as “good cause” or something along those lines. It seems to be that the IG serves at the pleasure of the president. If the president is not pleased, then he can fire you.
(I’m not an expert in federal employee law, but Mr. Linick may have whistleblower protection if he was fired in retaliation for a legitimate investigation. I’ll leave that to the experts in that field to analyze, since presidential appointees are treated much differently under federal employee law than regular career civil servants.)
To Whom Does the IG Report?
Under the IG Act, an IG “shall report to and be under the general supervision of the head of the establishment involved” (that is, the agency). The head of the agency may also delegate this reporting authority to the “next in rank” at the agency, but no lower than that.
To say an IG “reports” to the head of an agency is a bit misleading. Even though the IG formally reports to the head of the agency, the statute provides that
Neither the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation.
So, even if the Secretary of State (Mike Pompeo) desperately wanted to stop Mr. Linick from investigating him, Pompeo is powerless to stop him. The only way to stop it is to remove the IG and replace him with a new IG who will then decide in his discretion whether to continue the investigation.
I don’t think it will be any surprise when we hear in a few weeks that the alleged investigation into Secretary Pompeo is over.
An IG must “keep the head of such establishment and the Congress fully and currently informed, by means of the reports required by section 5 and otherwise” about fraud and abuse in the agency’s programs and must “recommend corrective action concerning such problems, abuses, and deficiencies.” (5a U.S.C. § 4(a)(5))
By April and October each year, the IG must make a semiannual report to Congress as well. (5a U.S.C. § 5)
Is an IG a Political Position?
An IG is not supposed to be political. As mentioned earlier, the President is supposed to select an IG “without regard to political affiliation.”
Now, it’s worth pointing out that many IGs in the past have not been political hacks when selected for the job. Although IGs have a fair amount of power within an agency and can open and later widely publicize investigations against political appointees. But let’s not kid ourselves, this is not a sought-after ambassadorship to Paris, Rome, or a sunny Caribbean island.
Still, the IG nominees usually have some connection to the president or are at least thought to be party supporters.
The targets of OIG investigations often feel that the IG is political, targeting them for having unpopular views within the agency or punishing them for being a political appointee of the wrong party or a confidant of an ousted agency head. And it’s hard to deny the political ramifications of some high-profile OIG reports, such as the one against James Comey or Andrew McCabe.
After all, this is Washington. Everything is political.
In Mr. Linick’s case, he was apparently investigating Secretary of State Mike Pompeo. When you investigate this particular president’s ally, you risk losing your job. That’s not how the system is supposed to work but the IG Act gives the president complete authority to remove an IG from office.
And this is a pattern by this president. He also removed the intelligence community IG, Michael Atkinson, in April 2020. Mr. Atkinson had informed Congress about the whistleblower complaint that kicked off the impeachment proceeding.
This is different from other administrations. For example, when the DOJ OIG issued a scathing report in 2012 about the ATF’s “Fast and Furious” program, President Obama did not fire the OIG for doing so.
If you read a few of our posts on OIG investigations (see here), you’ll see we are no fan of them. But it’s a sad state of affairs when the President of the United States so obviously seeks to protect his political allies from any investigations and is willing to intervene in unprecedented ways to stop it.