Politico: Trump's drive against watchdogs faces constitutional reckoning

by Kyle Cheney

President Donald Trump’s campaign against the watchdogs monitoring his administration could soon get a huge boost from the Supreme Court.

Trump’s drive to undermine inspectors general has outraged Democrats, who have offered a mountain of legislation to protect them from reprisal and removal. But there are deepening doubts about whether these efforts would survive constitutional scrutiny. And the high court could leave lawmakers powerless to combat Trump’s incursion against independent oversight, as it weighs a case that calls into question whether Congress can restrict the president from removing senior Executive Branch officials without cause.

Interviews with a dozen constitutional experts, former inspectors general, lawmakers and aides suggest that, even absent the upcoming Supreme Court ruling, any efforts to block Trump from ousting inspectors general would be on unsettled constitutional terrain. And lawmakers’ ambitious efforts could force a reckoning over the entire system of internal watchdogs.

Trump’s aggressive push to diminish the independence of inspectors general has alarmed Democrats and some Republicans who have long defended them as the last bulwark against administrative waste and misconduct. Previous presidents have bristled at internal watchdogs’ scrutiny but have rarely mounted such a broad-based, politically-driven campaign to chill their efforts.

In other words, a watchdog system that has operated largely on handshake agreements and tacit understandings of independence is – like many aspects of long-accepted U.S. governance – being tested like never before in the Trump era.

“For the president to stand up and say, ‘If I didn’t appoint this IG, he’s gone or she’s gone. If I don’t like what they’re saying, I’m going to stop them from saying it’ – that does not smack of an elected democracy,” said Sen. Jon Tester (D-Mont.) in an interview. “It smacks of a different kind of government.”

Trump has already engaged in extensive stonewalling of House investigations, which led to one of the impeachment articles against him. His Senate acquittal has left him unrestrained and eager for retribution.

Democrats’ pushback reached new decibels in recent days, as Trump claimed “absolute” power to remove inspectors general he dislikes, even if they’re investigating cabinet officials for potential abuses.

“Everybody agrees that I have the absolute right to fire the inspector generals,” Trump told reporters after facing questions about his decision to oust State Department IG Steve Linick, who has been reviewing an array of actions by Secretary of State Mike Pompeo. Trump indicated he didn’t know Linick but agreed to Pompeo’s request to remove him because he was appointed to the post by former President Barack Obama.

Other Republicans have picked up Trump’s mantle, arguing that he has unfettered power to oust inspectors general. “He has the full authority to hire and fire, under the Constitution, anybody in the executive branch,” said Senate Majority Leader Mitch McConnell.

Trump and McConnell’s comments came amid growing calls by Democrats for new measures to restrict Trump’s power to remove these IGs, some of whom have issued stinging reports about administration mismanagement and drawn the president’s fury.

As part of a sprawling, $3 trillion coronavirus response package, the House recently passed a proposal authored by nearly two dozen committee chairmen that would prohibit Trump from removing inspectors general without “good cause,” such as incapacitation or malfeasance. Sen. Robert Menendez (D-N.J.) offered a similar proposal that would also provide for congressional review of IG removals and limit who the president may install as acting replacements when there’s a vacancy.

And on Friday, House Oversight Committee Chair Carolyn Maloney (D-N.Y.) offered a closely related measure that would require “documented” good cause reasons to oust an inspector general. Their efforts have been cheered by advocacy groups like the Project on Government Oversight, who say protecting IGs from political interference is a crucial aspect of modern checks and balances.

In fact, Congress has made a series of moves to protect inspectors general in the years since they were established after Watergate. The most recent push came in 2008, when Congress passed the IG Reform Act, enshrining new protections, such as a requirement that the president notify lawmakers 30 days before removing an inspector general.

But for the first time, the entire system is being challenged by a president who rejects the notion that these roving internal auditors, who straddle the bright line between Capitol Hill and the Executive Branch, should do anything but answer to him.

Trump has made that clear in ways large and small. In addition to his removal of Linick at the State Department, last month Trump abruptly ousted intelligence community inspector general Michael Atkinson over his handling of a whistleblower complaint that ignited the House’s impeachment effort.

Days before that, Trump issued a signing statement accompanying a massive coronavirus relief law asserting that he – not Congress – decides whether an inspector general even communicates with lawmakers.

In recent weeks, Trump has also demoted or sidelined a slew of other inspectors general and moved to appoint loyalists to fill some of the vacancies. At both the State Department and Department of Transportation, the aides picked to temporarily fill the top IG position are also continuing to report to their agency bosses, a split role that Democrats and some Republicans warned could chill new whistleblowers and expose existing ones. Trump also nominated a replacement for the Health and Human Services Department IG after her office issued a report critical of the administration’s pandemic response.

It’s quickly become the stiffest test of the inspector general system – a pillar of the post-Watergate reform effort – since Ronald Reagan fired them all upon taking office in 1981, only to rehire some amid a withering backlash from Congress.

In fact, Congress so closely guarded the independence of inspectors general that a move by Obama to abruptly oust the AmeriCorps IG in 2009 prompted a five-month investigation by Sen. Chuck Grassley (R-Iowa) and then-Rep. Darrell Issa (R-Calif.) that resulted in a 62-page report sharply criticizing the decision.

“This isn’t the first time there’s been a tango or a contretemps between IGs and the president,” said Saikrishna Prakash, a University of Virginia constitutional scholar. He noted that IGs are somewhat “anomalous” and have been described as “moles for Congress” because of their unique obligations to sit within the Executive Branch but report their findings to lawmakers.

Today, Grassley is one of only a few Republicans raising alarms about Trump’s more broad-based push to remove inspectors general he dislikes.

Grassley mused just days ago that he may propose legislation to prohibit acting inspectors general who temporarily fill vacancies from continuing to report to agency leaders as well. And he’s written bipartisan letters to the Trump White House demanding more detail about Trump’s reasons for removing Linick and Atkinson, suggesting Trump’s initial rationale – a general loss of confidence – was insufficient.

Still, Grassley hasn’t signaled any move toward tying Trump’s hands with legislation, and such a proposal would be difficult to get passed in the GOP-controlled Senate let alone signed into law by Trump.

Whether Congress can bar Trump from removing any inspector general is likely to come into focus within weeks, as the Supreme Court rules on a case over whether the Consumer Financial Protection Bureau is constitutional.

The agency, which was established after the 2008 financial crisis, is being challenged by a law firm that argues its structure violates the separation of powers because its director can only be removed for specific “good cause” reasons. How the court rules could determine whether other senior Executive Branch officials – such as inspectors general – can be protected from removal without violating the president’s power to manage his own branch of government.

Though IGs have less authority than other senior officials – they don’t have the power to prosecute or control large budgets – they also have no term limits. Congress expressly opted against including a seven-year term limit in the 2008 IG reform bill; lawmakers also rejected a call to protect IGs from removal without cause in favor of a provision requiring the president to notify Congress 30 days in advance before firing an inspector general.

Adding in removal protections without corresponding term limits could give the courts – now stocked with Trump-appointed judges who may be more amenable to his views on executive authority – reason to rule broadly against limiting the president’s power.

“There are certainly ways to make such provisions more likely to survive scrutiny (term limits would be an essential first step), but Congress needs to go in with its eyes open about the Court it’s now facing,” said Deborah Pearlstein, a Yeshiva University legal expert who advised the House on the constitutionality of its recent proxy voting decision.

Peter Shane, an Ohio State University constitutional scholar, added, “Typically, officers protected from at-will presidential removal also have statutory terms of office so they don’t serve forever.”

Instead, some experts think other forms of congressionally imposed limitations might survive legal scrutiny. One includes a new proposal from Tester that would automatically zero out the Department of Treasury’s budget if the newly created coronavirus response inspector general is blocked from accessing internal information.

“Congress can stop this bullshit from happening right now if the Republicans would step up,” Tester said.

Some legal scholars also argue that despite the lack of certainty, previous rulings suggest Congress can impose limits on Trump’s removal of inspectors general so long as they don’t impede his constitutional responsibility to execute the law faithfully. A 1935 Supreme Court decision allowed Congress to limit the removal of officers who lead independent agencies like the Federal Trade Commission. The House Oversight Committee cited that ruling to support its new proposals to limit Trump’s ability to fire IGs.

Michael Bromwich, a former Justice Department inspector general who has since become a vocal Trump critic, said he worries that “for cause” restrictions on IG removal could be unconstitutional but that proposals like Tester’s could be valuable.

“Until now, IGs operated in a world where they believed that standard existed as a matter of fact even though it did not exist in law,” Bromwich said. That’s no longer the case.