Watchdogs Testify Before HSGAC on IG Legislation
Three Inspector Generals (IG) testified before the Senate Committee on Homeland Security and Governmental Affairs (HSGAC) on October 21, 2021. The hearing focused on two Inspectors General reform bills the committee is considering, IG Testimonial Subpoena Authority Act and the IG Independence and Empowerment Act.
Witnesses include Allison Lerner, Chair of the Council of the Inspectors General on Integrity and Efficiency (CIGIE) and the National Science Foundation’s IG; Kevin Winters, Chair of CIGIE’s Integrity Committee and Amtrak’s IG; and Michael Horowitz, the Department of Justice’s (DOJ) IG.
IG Testimonial Subpoena Authority Act would grant IGs’ authority to subpoena former federal officials and contractors — a tool watchdogs have routinely requested from Congress.
“We’ve had occasions where people have resigned a few hours before a compelled interview, precisely because they want to avoid speaking to us,” reported IG Horowitz, “I can compel a DOJ employee, I can’t compel one of their contractors, and if they leave the contractor, it’s even harder to get that person to agree to speak with us.”
Senator Rob Portman (R-OH), Committee Ranking Member, voiced concerns of potential abuse with this new authority, stating “Subpoena authority is a weighty responsibility, though, which is why I've worked with Senator Peters to ensure the bill does provide effective guardrails and effective reporting to Congress,” in his opening remarks.
Though federal employees must comply with IG investigations, former employees do not have to do so, even if the probe includes this individual’s misconduct, so long as they leave prior to or in the middle of an investigation. “If they refuse to testify or answer our calls, then the investigations are somewhat pointless,” said IG Winters.
The IG Independence and Empowerment Act has various provisions to increase Congressional oversight of temporary IGs and IG removals. For example, the legislation would require Congressional notice when an IG is placed in a nonduty status. A provision restricting the president’s authority to remove IGs and appoint temporary Acting IGs has also been hotly debated.
Temporary IGs create pockets of partisanship, according to IG Lerner, “[A] president can fill a presidentially-appointed, Senate-confirmed IG vacancy with a political appointee or a senior official from the agency the IG oversees,” which can “…undermine the IG’s independence and stakeholders’ confidence in its work; discourage whistleblowers from coming to the IG with evidence of fraud, waste and abuse; and create a disincentive for the president to appoint a permanent IG.”
Further, the Empowerment Act includes the previously introduced standalone bill – the IG Access Act, which would extend the DOJ’s Office of the Inspector General’s (OIG) jurisdiction to include professional misconduct allegations by Department attorneys.
DOJ IG Horowitz, said during his opening statement, “Providing the DOJ OIG with the authority to exercise jurisdiction in attorney professional misconduct cases would enhance the public’s confidence in the outcomes of these investigations and provide the OIG with the same authority as every other IG.”
Horowitz noted stakeholder opposition to the legislation, including an op-ed from the National Association of Assistant U.S. Attorneys (NAAUSA).
In a statement in response to IG Horowitz statements at the hearing, NAAUSA President Steven Wasserman reiterated the Association’s concerns and called on Congress further review the issue before taking any action.
“OPR employs experienced attorneys uniquely equipped to navigate the complex web of legal and ethical standards applicable to DOJ attorneys. While Inspector General Horowitz asserted only other attorneys would review attorney misconduct cases and would only use same process currently used by OPR, this promise only lasts as long as Horowitz is the Inspector General. Nothing in the Act requires consistency,” Wasserman said. “Congress cannot put the livelihood of attorneys on the line by experimenting with a solution to perceived problems. We call upon Congress to identify a real problem before attempting to impose a solution. This issue has not been subject to review by Government Accountability Office (GAO) in decades. A GAO review of the current OPR investigative process would assist Congress in identifying the exact accountability deficiency and the proper steps for improvement.”
Both the IG Testimonial Subpoena Authority Act and the IG Independence and Empowerment Act will be subject to additional review and markup by the Committee before receiving a vote. If moved favorably out of Committee, the legislation will advance to the full Senate for consideration.