Reportedly, while on detail to the National Security Council (NSC), an intelligence community employee overheard President Donald Trump pressure the Ukrainian president to initiate a law enforcement investigation against presidential candidate Joe Biden’s son. The employee reported this and potentially other concerns to the Office of the Inspector General for the Intelligence Community (IC OIG). IC OIG determined the complaint was credible and, pursuant to the IC Whistleblower Protection Act (IC WPA), forwarded it to the Office of the Director of National Intelligence (ODNI). ODNI, however, declined to forward the complaint to congressional intelligence committees as required by the IC WPA. IC OIG informed House of Representatives Intelligence Committee Chairman Adam Schiff, who demanded the complaint’s production — first without and then with a subpoena. ODNI, pursuant to the Department of Justice’s (DOJ’s) advice, stated it was not required to produce the complaint to Congress because the disclosure (1) “does not allege misconduct within the [IC] or concern an intelligence activity subject to the authority of the DNI”; and (2) “involves confidential and potentially privileged communications by persons outside the [IC].”
The Executive branch’s official position appears to be that, despite IC WPA, ODNI is not required to notify Congress of whistleblower complaints involving the conduct of the President or any non-IC member. This would include NSC (despite its intelligence functions), the President (despite his status as Chief Executive), and any other Executive Office of the President (EOP) agency (despite the classified nature of their work). No other IG appears authorized to investigate a whistleblower disclosure involving the President or any EOP employee unless (conceivably) the disclosure involves programs and operations of the entity it oversees. The U.S. Office of Special Counsel’s Disclosure Unit (OSC) appears authorized to receive EOP employees’ whistleblower disclosures and refer them to EOP agencies for investigation and report. But OSC lacks authority to investigate such allegations itself, and the Executive’s position on the IC whistleblower disclosure suggests EOP agencies would refuse to investigate an OSC-referred disclosure. Congress’s attempts to oversee the EOP have been hampered by the expansive view of Executive privilege White House Counsel wields to fight congressional subpoenas. Therefore, no currently-existent entity appears capable of effectively investigating allegations of misconduct within the EOP. A new entity is needed: an EOP OIG.
The idea of an EOP OIG is not new. Members of Congress have twice introduced bills intended to create an EOP OIG. Those bills are described and compared below, after which I suggest some enhancements.
The White House Inspector General Act of 1996
On May 14, 1996, Representative John Mica introduced the Presidential and Executive Office Accountability Act (H.R. 3452) (PEOAA). On July 23, 1996, while the House was debating the PEOAA, Representative Charlie Bass introduced the White House Inspector General Act (H.R. 3872) (WHIG Act). This bill would have amended the Inspector General Act of 1978 (IG Act) to create an EOP OIG. This EOP OIG would be subject to the same requirements as other statutory OIGs and others set forth in the WHIG Act.
The proposed EOP OIG would be unique in several ways. Unlike other OIGs, the WHIG Act’s EOP OIG would “be under the authority, direction, and control of the President with respect to audits or investigations, or the issuance of subpoenas, which require access to information concerning” six categories of law enforcement, intelligence, counterintelligence, and other national security matters.
The WHIG Act authorized the President to “prohibit [EOP OIG] from carrying out or completing any audit or investigation, or issuing any subpoena, after [EOP OIG] has decided to initiate, carry out, or complete such audit or investigation or to issue such subpoena, if the President determines (1) the disclosure of that information would interfere with the core functions of the constitutional responsibilities of the President; and (2) the prohibition is necessary to prevent the disclosure of that information.” If the President made such a determination and prohibition, s/he would notify EOP OIG within 30 days of the investigation’s initiation “in writing stating the reasons for that determination.” EOP OIG would then notify the Chairman and Ranking Member of specified House and Senate committees within 30 days.
The WHIG Act’s EOP OIG would send the President semiannual reports containing the information required of other statutory OIG reports, as well as (1) a list of each “inspection, investigation, or audit conduct[ed] during the reporting period”; (2) the corrective actions it recommended; (3) whether and what corrective action was completed pursuant to those recommendations; (4) EOP IG’s certification that s/he had “full and direct access to all information relevant to the performance of [his/her] functions”; (5) a list of cases where EOP OIG “could not obtain documentary evidence relevant to any inspection, audit, or investigation due to [the President’s] determination” to prohibit an inquiry; and (6) EOP OIG’s recommendations for “legislation to promote economy and efficiency in [administering EOP] programs and operations, and to detect and eliminate fraud, waste, and abuse in such programs and operations.” Within 30 days of receiving such a report, the President would transmit it and his/her written comments to the Chairman and Ranking Member of specified House and Senate committees.
On July 25, 1996, the House Committee on Government Reform and Oversight amended the PEOAA to include the WHIG Act at Section 9. On September 24, 1996, despite opposition from DOJ and some Representatives, the House passed the PEOAA. However, before the Senate did so on October 3, 1996, Section 9 was removed due to objections from DOJ and Representative Carolyn Maloney. On October 26, 1996, President Clinton signed the PEOAA into law without an EOP OIG.
The Federal Executive Accountability Act of 2017
On February 13, 2017, Representative Rosa DeLauro introduced another bill to create an EOP OIG: The Federal Executive Accountability Act (H.R. 1016) (FEAA). The FEAA shared many similarities with the WHIG Act. Both would have created an EOP OIG by amending the IG Act’s definitions of “head of establishment” and “establishment” to include “the President (with respect to [EOP])” and “[EOP],” respectively. Both subjected EOP OIG to the President’s “authority, direction, and control . . . with respect to audits or investigations, or the issuance of subpoenas, which require access to information concerning” certain categories of information. Both bills authorized the President to prohibit EOP OIG inquiries into specified categories of information if s/he notified EOP OIG within 30 days “in writing stating the reasons for that determination” and require EOP OIG to report each such instance to Congress within 30 days of such notice. Both required semiannual EOP OIG reports to the President containing the same information, and both required the President to transmit it to the Chairman and Ranking Member of specified House and Senate committees, with the President’s comments, within 30 days of receipt.
But the FEAA differed from the WHIG Act in important respects. First, the FEAA authorized the President to prohibit EOP OIG from pursuing an already-initiated inquiry into three types of matters (rather than the WHIG Act’s six): (1) identities of confidential sources or protected witnesses, (2) intelligence or counterintelligence matters, or (3) covert operations. Unlike the WHIG Act, the FEAA did not authorize the President to prohibit inquiries into (1) “ongoing criminal matters;” (2) “deliberations and decisions on policy matters, including documented information used as a basis for making policy decisions;” or (3) “other matters the disclosure of which would constitute a serious threat to the national security, or would cause significant impairment to [U.S.] national interests (including interest in foreign trade negotiations)[.]”
Second, unlike the WHIG Act, the FEAA required EOP OIG, “in consultation with” the National Archives and Records Administration’s Information Security Oversight Office (ISOO), to conduct “two [specific types of] evaluations of [EOP].” First, EOP OIG would “assess whether applicable classification policies, procedures, rules, and regulations have been adopted, followed, and effectively administered within [EOP].” Second, EOP OIG would “identify policies, procedures, rules, regulations, or management practices [appearing to contribute to EOP’s] persistent misclassification of material.” The first such evaluation would conclude within one year of the FEAA’s enactment. Every year thereafter, this evaluation report would include an assessment of “progress made pursuant to the [first year’s evaluation] results” (and perhaps the results of subsequent evaluations; the FEAA is silent).
Regarding an “over-classification audit” (the FEAA’s second type of evaluation), the FEAA’s EOP OIG would coordinate with other OIGs and ISOO to ensure “evaluations follow a consistent methodology, as appropriate, that allows for cross-agency comparison;” and submit each such audit it completes to “appropriate entities,” including congressional committees, the President, and ISOO’s Director. EOP OIG would include in each such report (1) “a description of policies, procedures, rules, regulations, or management practices” it identified as contributing to EOP’s persistent information misclassification; and (2) EOP OIG’s recommendations for reforming such standards.
Upon introduction, the FEAA was referred to the House Committee on Oversight and Government Reform. It was not mentioned in the Committee’s summary of its activities during the 115th Congress, so the FEAA appears to have died there without discussion or action.
Congress should again consider the FEAA’s EOP OIG, augmented as suggested below
EOP agencies are staffed by hundreds of federal employees. The vast majority are especially conscientious public servants who are as professional as they are highly-skilled and law-abiding. But EOP employees lack an oversight entity capable of investigating their allegations of wrongdoing; as well as an independent watchdog to hold EOP wrongdoers accountable. Only a statutorily created OIG with carefully-safeguarded independence and optimized effectiveness could reliably deter EOP wrongdoing and hold EOP wrongdoers accountable.
The FEAA’s EOP OIG would be sufficiently independent and empowered to serve these purposes. However, this already-impressive entity could be enhanced as follows.
First, instead of one EOP-wide OIG, each EOP agency must have its own OIG. Installing an entity with congressional reporting duties atop the EOP will surely lead to constitutional challenges. Members of Congress believed so when they struck the PEOAA’s EOP OIG provision. Creating an OIG for each EOP agency, subject to that EOP agency’s head, would create a more amenable arrangement by distancing the OIGs from presidential deliberations and communications. Accordingly, the President’s FEAA-granted power to stop investigations should be reallocated to EOP agency heads.
Next, EOP-agency OIGs must be required to report on each whistleblower disclosure they receive, regardless of credibility. This would ensure the EOP’s strong political and institutional pressures do not stifle or water down EOP OIG reports.
Also, each EOP-agency OIG should be regularly audited by the Council of Inspectors General on Integrity and Efficiency (CIGIE). CIGIE audits should focus on compliance with CIGIE’s audit- and investigation-quality standards to ensure political pressure never strips reports of substance. These audits would be in addition to the FEAA’s requirement that EOP OIGs coordinate with ISOO and other OIGs regarding over-classification audits.
Further, each EOP OIG should be the designated recipient of OSC-referred disclosures concerning its affiliated EOP agency. EOP agency heads should be prohibited from shutting down OSC-referred investigations unless already contemplated in the statute authorizing OSC’s disclosure-referral function (ex. disclosures involving counterintelligence information). The FEAA, as introduced in 2017, allows an EOP agency head to shut down EOP OIG investigations falling within certain categories, even those focusing on the agency head’s conduct. Therefore, where OSC is authorized to investigate them, OSC would become the preferred recipient for such disclosures concerning EOP agency heads.
Finally, investigators and attorneys of EOP-agency OIGs should circulate amongst the EOP-agency OIGs on periodic details. This would create a corps of EOP oversight experts applying a shared methodology, understanding each EOP agency’s and OIG’s operations, and internalizing an EOP-wide zeal for public integrity and good governance. Such interchange would ensure no OIG becomes captured or corrupted by an EOP agency.
EOP OIGs modeled on the FEAA’s, augmented as suggested, would bring much-needed oversight and accountability to EOP agencies. They would ensure whistleblower disclosures are investigated and reported on, the rule of law is upheld, and the powerful are held accountable within the EOP.
*All statements of fact, opinion, or analysis expressed in this post are those of the author, speaking in his personal capacity, and do not reflect the official positions or views of the U.S. Government. Nothing in this post should be construed as asserting or implying U.S. Government authentication of information or endorsement of the author’s views.