Why do we have inspectors general? To call out abuse of power

America is in a full-blown constitutional crisis for one reason: The fox has mostly been left in charge of the henhouse. These days, virtually any attempt at assigning responsibility and accountability at the president’s feet — however factually and legally legitimate — is met with howls of outrage. Of course, this construct gets it all wrong. The American revolutionaries fought and died for independent self-governance — not so they could crown an American king.

After Watergate, lawmakers realized that transparency and accountability in government are vital to a functioning democracy. Congress passed the Inspector General Act of 1978. Under the original statute, President Jimmy Carter appointed 12 inspectors general (IGs).

Today, that number has grown to 73. Executive branch agencies have their own IGs, whose job it is to ensure that agencies are operating within the boundaries of the law and in compliance with government standards. 

IGs perform regular audits to identify and investigate fraud, criminality, misconduct, waste of funds and abuses of office. They keep an eye on a wide array of people, including internal government employees, external contractors, and grant or loan recipients. For Americans who distrust government spending, IGs are a very good thing. 

Although IGs are part of the agencies they are charged with auditing, higher-ups cannot stop IGs from conducting investigations. IGs hire their own people (including financial auditors and even armed criminal investigators), issue their own subpoenas for documents, and have authority to take their own witness testimony. Their ability to function without day-to-day oversight is why IGs are loosely termed “independent.” 

By necessity, IGs work hand-in-hand with whistleblowers — people inside the agency who decide to “blow the whistle” on potential wrongdoing that might not otherwise come to light.

Whistleblowers are not spies or treasonous actors — as President Trump irresponsibly accused the whistleblower who complained of his July 25 call with Ukrainian President Volodymyr Zelensky in which he asked Zelensky to do the “favor” of investigating his political rival, former Vice President Joe Biden and his family. To the contrary, the whistleblower tradition is deeply entrenched in our system of government. In 1778 — a decade before ratification of the Constitution itself — the continental Congress passed a whistleblower statute to address allegations of prisoner abuse within the United States Navy.

Potential misconduct by an actual IG is investigated by a separate independent entity, the Council of the Inspectors General on Integrity and Efficiency. That body can look into a complaint about an IG, but it has no authority to act on it. Credible allegations of IG wrongdoing boomerang back to the agency head and, ultimately, to the president. 

All told, an IG works for the people of the United States — not elected politicians and appointed officials. Yet, as Philip Rotner writes in The Bulwark, the president’s appointment power leaves even these watchdog positions vulnerable to political capture. Moreover, unlike special counsel Robert Mueller — who could only be removed for “cause” under Department of Justice (DOJ) regulations — IGs can generally be removed by the president for political or even retaliatory reasons.

Which brings me to a recurring problem with our system of separated government as it’s playing out under the current president: Too many roads lead back to the president himself.

Under federal law, the White House is not considered an “agency,” and it does not have its own IG. The whistleblower who raised alarm over the July 25 call and possible coverup is a U.S. intelligence official stationed within the White House. Instead of filing the complaint with a non-existent White House IG, he or she filed the complaint with the IG of the intelligence community, Michael Atkinson. Under the controlling statute, Atkinson found the complaint “credible” and of “urgent concern” and forwarded it to the Director of National Intelligence Joseph McGuire.

We know how the rest of the story goes: Rather than send it to Congress as the plain language of the statute required, McGuire sought the advice of DOJ, which of course is headed by Attorney General William Barr — a staunch defender of Trump personally. That office proceeded to bury the complaint until Atkinson notified Congress of its existence.

The IG system was set up to deal with wrongdoing by people within the executive branch — not wrongdoing by the person at its very apex. The apparatus assumes that the president will uphold the rule of law and, barring that, that Congress will address any “high crimes and misdemeanors” as a last-straw measure through impeachment. But of course, the viability of the constitutional impeachment prerogative requires that Congress learn of presidential wrongdoing in the first place.

The framers of the Constitution knew that it’s human nature to amass, entrench and abuse power to the detriment of regular people. Even if we optimistically assume that American democracy survives its latest series of body blows, it’s probably not going to be the last time a president will abuse the power of his or her office.

Ideally, Congress would step up and pass substantive legislation to close the gaping loophole that the whistleblower process tolerates — but luckily circumvented — this time. More than any other position in government, the presidency requires a system of checks and balances that’s nearly foolproof.

Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is also a professor at the University of Baltimore School of Law. She is the author of “How to Read the Constitution and—Why.” Her next book, “What You Need to Know About Voting—and Why,” is forthcoming with HarperCollins in July 2020. Follow her on Twitter @kim_wehle.