Taking Care to Faithfully Execute the Law? Or Silencing Whistleblowers?

In the midst of the coronavirus pandemic, President Trump recently announced his plan to fire and replace various inspectors general. Perhaps most notably, the President announced plans to fire Michael Atkinson, the intelligence community inspector general he appointed, who later alerted Congress to the Ukraine whistleblower’s complaint. Throughout the impeachment proceedings, Mr. Atkinson successfully hid the identity of the whistleblower, despite numerous efforts by the President and many Republican members of Congress to publicize it. Mr. Atkinson gave a statement in response to the decision, noting that it “is hard not to think that the President’s loss of confidence in me derives from my having faithfully discharged my legal obligations as an independent and impartial Inspector General.”

The President’s announcement received considerable attention – and for good reason. One article described the President’s plans as “rooting out administration officials perceived as disloyal.” This characterization is not exactly an exaggeration; the President himself cited a lack of confidence in Inspector General Atkinson as the reason – the only reason – for letting him go.

But what exactly does the President mean by “lack of confidence”? If “confidence” depends on how “loyal” inspectors general are to the President, that is cause for widespread concern. Inspectors general were created to provide an unbiased, apolitical function in our system of government: to prevent fraud and abuse by our government officials. The Inspector General Act of 1978 explicitly provides that IG appointment should be made “without regard to political affiliation” and based on the individual’s “integrity and demonstrated ability.” Inspectors general are not supposed to be “loyal” to any individual president.

Under Article II of the Constitution, the President is to “take care that the laws be faithfully executed.” But Congress enacts those laws, and the President is subject to them as well. When the president nominates political allies to oversight posts, it raises concern that political affiliation is more important than “integrity and demonstrated ability,” which is what the law actually requires. While the President can nominate qualified individuals who are members of his or her political party, the nomination must be based “solely” on the “integrity and demonstrated ability” of the appointee. Nominating individuals who have played prominent political roles undermines the integrity of the office of Inspector General.

Mr Atkinson’s firing did not go unnoticed.

Following the President’s announcement, Speaker Nancy Pelosi, among others, voiced concerns that the President’s decision will greatly diminish the likelihood that whistleblowers will blow the whistle on government wrongdoing. Whistleblowers have legitimate fears that their identities will be exposed and their jobs and reputations put in jeopardy; the Ukraine whistleblower’s identity remained anonymous only because of Mr. Atkinson’s persistence in protecting the whistleblower despite numerous demands from the President and congresspersons. Without whistleblower confidence that inspectors general will protect them, reports of abuse will cease.

Perhaps even more notably, the Chair of the Council of the Inspectors General on Integrity and Efficiency (CIGIE) issued a statement supporting Mr. Atkinson. The statement described Mr. Atkinson as being known for his “integrity, professionalism, and commitment to the rule of law and independent oversight.” And soon afterwards, Senator Charles Grassley (R-IA) and a host of other senior Senators authored a letter to the President asking him to provide them with a “more detailed reasoning for the removal of Inspector General Atkinson.” These unprecedented, bipartisan actions signify a great deal of concern inside the oversight community about the President’s apparent attack on government watchdogs and the message those attacks are sending to potential whistleblowers.

Mr. Atkinson himself encouraged people not to be silent despite “recent events.” The chilling effect on whistleblowers and oversight professionals is especially dangerous at a time when the federal government is spending trillions of dollars in response to the COVID19 pandemic.

Congress should take steps to reinforce the importance of the impartiality of the inspector generals in our system of government and the vital need to protect whistleblowers. The law requires Inspectors General to make decisions honestly, with transparency, and without regard to the political ramifications. When the President serves notice that his “confidence” is so fragile that he will fire anyone who does not blindly support him, alarm bells should be sounding on Capitol Hill.