Executive Branch

Can an Investigative Commission for the Trump Era Actually Work? A Proposal

By Charlotte Butash, Bryce Klehm, Benjamin Wittes
Thursday, February 4, 2021, 4:26 PM

How should Americans, and Congress and the Biden administration, think about the problem of accountability for the past four years?

On a routine basis, commentators and politicians throw around concepts that are more mood than they are operational guidance. People talk of criminal prosecution, often without specifying precisely what charges they would like filed against what proposed defendants. Or they talk of looking forward, not backward, without specifying even an attitude—let alone a policy—toward what people see when they do glance backward. Or some people talk vaguely of a truth and reconciliation commission, without saying what such a commission would be empowered to look at, what its powers might be, or what Americans should want it to accomplish.

There is, to be sure, a serious set of conversations lying beneath the vagaries. A recent report from Protect Democracy usefully surveys a number of different accountability mechanisms and proposes a series of principles for thinking about “non-recurrence.” And there has been a lively debate about the role that transitional justice, truth commissions and prosecutions have to play in a post-Trump era. What there have not been are a lot of detailed proposals about what sort of body would do what sort of investigation.

With Donald Trump no longer in office, it’s time for a more granular conversation about accountability, truth, prosecution, and forgiveness for the Trump era, one based on specific proposals for ways to handle a sprawling mass of allegations, suspicions, and media reporting suggestive of improprieties large and small. It’s a mammoth task, one that could easily get shunted aside out of a desire for unity or could, absent strong and careful leadership, turn into a vindictive effort to smear political appointees who were—in some instances—just trying to keep the trains running under extraordinarily difficult circumstances.

A few days ago, one of the present authors, writing with Daniel Byman, tried to imagine the substantive mandate of a commission to investigate the storming of the Capitol on Jan. 6. The problem, as one thinks about the broader Trump era, is similar, only endlessly vaster. 

It is similar in the sense that, as with a Jan. 6 commission, one needs a mechanism that is not limited to criminal questions, that has elements of a congressional committee investigation and elements of journalism. Many of the concerns about the behavior of Donald Trump and his political appointees within and toward the executive branch are not criminal in character. Even where they are, resolving the criminal questions—particularly where charges do not emerge—does little to shed light on abuses that may not rise to the level of indictable offenses that are provable in court. Moreover, the criminal process does not address questions of what policy changes might be in order in response to abuses. And, perhaps most importantly, the criminal process is not designed to tell the story, agency by agency, of the Trump administration’s impact on the U.S. government. Waiting for journalists and historians to tell these stories will not aid the short- and medium-term cause of reform that might reasonably depend on the stories’ details. Understanding these stories, separating controversial policy choices from abuse of government power from simple corruption, is arguably more important than charges against any individual.

Yet the difference in scale between the events of Jan. 6 and the substantive mandate of any kind of broader investigative effort for the Trump years is so enormous as to create an almost debilitating problem for the latter effort. The known and alleged predations of the Trump administration on good government, after all, ran across the federal government’s many Cabinet departments and agencies. They involved an astonishing array of abusive uses of public resources and government powers from the highest levels and from individual political appointees alike—everything from the president’s attempting to use the Justice Department to go after his political enemies to a State Department official carrying a whip around the office. How might Congress design a commission that could even begin to tackle the range of activities about which the public is entitled to an accounting? There are possible models, the 9/11 Commission being the most prominent. But none seems optimized for the task at hand.

An alternative approach is to build a kind of distributed investigative commission on the back of an existing system that already has the ability to investigate misconduct in every important agency in the federal government: the network of inspectors general.

The government’s inspectors general are themselves a victim of the Trump era. As early as the presidential transition in January 2017, Trump aides reportedly told a number of inspectors general that they could be fired or removed, though the transition team ultimately opted not to remove them. The first three years of the Trump administration, as John Hudak has noted on the Brookings Institution’s FixGov blog, saw the departure of 37 inspectors general. As of April 2020, 13 out of 74 inspector general posts were either vacant or had an acting inspector general, including inspector general offices at the CIA and Department of Defense.

The administration’s feud with inspectors general reached its peak over the course of six weeks in 2020, when the former president fired or removed a total of five inspectors general, three of whom were serving in an acting capacity. This included Steve Linick, the inspector general at the State Department, who was then investigating alleged misconduct by then-Secretary of State Mike Pompeo. (Less than three months after Linick’s departure, his replacement too left with no explanation from the State Department.) Trump also ousted the acting inspector general at the Department of Health and Human Services, Christi Grimm, after her office released a report in April 2020 that detailed “widespread shortages of PPE” in hospitals and “severe shortages of testing supplies” during the early response to the pandemic. When asked about Grimm’s report at an April 6 press conference, Trump responded, “Did I hear the word ‘inspector general’? Really? It’s wrong,” and asked the reporter for the inspector general’s name.

On April 3, 2020, Trump fired Michael Atkinson, the inspector general of the intelligence community, who had earlier shared a whistleblower’s complaint with Congress that detailed the former president’s conduct with regard to Ukraine. Trump also removed the acting inspector general of the Department of Defense, Glenn Fine, in April 2020. At the time, Fine was concurrently serving as the chairman of the Pandemic Response Accountability Committee that sought to monitor the distribution of trillions of dollars in coronavirus aid; his ouster from the Pentagon job disqualified him from serving in the pandemic relief oversight role. And in May 2020, Trump removed the acting inspector general of the Department of Transportation, Mitchell Behm, who also had been serving on the Pandemic Response Accountability Committee. After House Democrats sought his reinstatement, a Department of Transportation spokesperson told reporters that Behm was never appointed to the role, despite the fact that Behm’s biography on the department’s website and a pandemic oversight press release specifically identified him as the acting inspector general. Behm’s biography on the department’s website even explicitly stated, “Per the Federal Vacancies Reform Act and our own Order of Succession, on February 1, 2020, Mitch Behm assumed the authority and duties of Acting Inspector General for the Department of Transportation.” Behm’s replacement, Howard Elliott, had been appointed acting inspector general while he was concurrently serving as the head of the department’s pipeline and hazardous materials agency—an agency that falls under the investigative authority of the inspector general’s office.

Indeed, what to do about Trump-appointed inspectors general jammed into their roles is a bit of a puzzle for the Biden administration. The appointment of Elliot’s replacement, Eric Soskin, for example, was rammed through the Senate by then-Majority Leader Mitch McConnell in a party-line vote even while the office was investigating whether Transportation Secretary Elaine Chao—McConnell’s wife—favored contracts in Kentucky while McConnell was running for reelection. In 2019, the House Oversight and Reform Committee also investigated Chao for connections to her family’s shipping company. And with only one Democratic vote in June 2020, the Senate confirmed Brian D. Miller, a White House lawyer who was Trump’s nominee for special inspector general for pandemic recovery. (According to the New York Times, Miller still holds the position.)

And yet, the inspector general system nonetheless scored some real wins during the Trump era. It was a whistleblower’s complaint to the intelligence community’s inspector general that led to the revelation of the Ukraine scandal. The Department of Homeland Security’s Office of Inspector General revealed the U.S. Citizenship and Immigration Services’s hiring of physicians “with a history of patient abuse” and that some doctors previously had “disciplinary actions for egregious infractions.” A report by the Department of Homeland Security’s inspector general warned of “dangerous overcrowding” at an immigration processing center in El Paso, Texas. The Department of Veterans Affairs’s inspector general found that Secretary Robert Wilkie and other senior department officials questioned and disparaged a veteran who accused a department contractor of sexual assault. And in the final days of the Trump administration, the Department of Justice’s inspector general released a report detailing the “zero tolerance” policy that led to family separations, a report that found the department’s “single-minded focus on increasing immigration prosecutions came at the expense of careful and appropriate consideration of the impact of family unit prosecutions and child separations.”

Not all of the major activity of inspectors general was at Trump’s expense either. It was the Justice Department’s inspector general, after all, who issued major reports blasting James Comey and others in the FBI leadership, as well as a devastating account of the handling of the Carter Page Foreign Intelligence Surveillance Act warrant during the Russia investigation.

The work continues. Just the other day, Justice Department Inspector General Michael Horowitz announced an investigation into “whether any former or current DOJ official engaged in an improper attempt to have DOJ seek to alter the outcome of the 2020 Presidential Election.” The announcement came three days after a New York Times report revealed an alleged effort by then-President Trump and a top Justice Department lawyer to replace the acting attorney general in order to use the department to question the election results.

The inspector general system has a number of key advantages for the purpose of a broad look at Trump administration abuses. The first is that it already exists and functions relatively well and relatively apolitically across the government for the specific purpose of creating investigative reports. Building an investigative apparatus to handle a truly sprawling morass of allegations is a heavy lift. Creating an apparatus that can zoom into agencies across the government, can look minutely at details, can dismiss material too trivial to spend time on, and can also identify and document the matters worth exposing to the public is an almost unimaginable one. It is far easier to imagine building such an accountability mechanism out of a system that already has a presence in the major agencies, that already has a significant amount of investigative muscle in each of them, and that already has systems for filtering, investigating, and reporting on allegations—and that similarly has systems for referring potential criminal matters for prosecution.

It’s notable, in this regard, that the inspector general system mimics in a way no other institution does the kind of accountability that people seem to want from a truth and reconciliation commission. That is, it conducts primarily noncriminal investigations designed mainly for public reporting on and exposing of abuses with a system available to refer potential crimes for prosecution. Unlike with journalism, it is a crime to lie to an inspector general investigation, so the investigations have some real teeth. And while inspectors general can’t compel cooperation from former officials, they can effectively do so for people still working in government, meaning that their access to people and records is dramatically better and more routine than that of most outside investigators.

It is also the case that inspectors general, as described above, have already done a certain amount of the work. Yes, there are big gaps, but inspectors general across the federal government have reported on a wide variety of matters related to Trump administration abuses of power. Want to know about the General Services Administration’s management of the Trump Organization’s lease of the Old Post Office Pavilion? There’s an inspector general report on that. Want to learn about the use of government resources by former Interior Secretary Ryan Zinke on behalf of his wife? There’s an inspector general report on that too. Remember that $30,000 dining room furniture that former Housing and Urban Development Secretary Ben Carson sought to put in his office suite? There’s an inspector general report on that too—and it actually clears Carson of wrongdoing. There are any number of reports examining any number of allegations. There are large numbers of other matters still under review. The point is that this network of investigators has a big jump on the broader questions of integrity and abuse of power that any investigative commission would need to look at.

In other words, building a kind of distributed investigative commission out of the existing inspectors general system would simultaneously leverage the system’s unique capabilities and express confidence in a system that was itself the subject of Trump-era abuse and political pressure.

Toward this end, what if there were a way to ask each inspector general across the government both to assemble findings regarding the past four years and to investigate complaints about the Trump era as yet unexamined or unreported? What if there were a systematic, centralized effort to assemble such material into an organized account of misconduct during the period? And what if there were a focused new effort aimed at accounting for White House and presidential behavior—a matter covered by none of the inspectors general organically?

To design such a network of noncriminal investigations properly would require an act of Congress. But a lot of the system is already in place, and a crude version of what we’re imagining could be implemented by the executive.

The Inspector General Act of 1978 provides the main framework governing inspectors general. Under the act, each inspector general has the “duty and responsibility” to “provide policy direction for” and “conduct, supervise, and coordinate” audits and investigations into waste, fraud or other abuses within the inspector general’s agency or department. An inspector general must also keep the head of his or her agency or department, along with Congress, “fully and currently informed” concerning any fraud or abuse he or she uncovers.

Inspectors general are supposed to be independent, so it would be wrong for President Biden to announce that he is instructing all the inspectors general to investigate the misdeeds of the previous administration. That said, the independence of the inspectors general does not preclude all tasking; it is, in fact, designed to prevent agencies from impeding inspector general investigations, not really to prevent them from being assigned work. Each inspector general “report[s] to and [is] under the general supervision” of the head of the agency for which he or she works, but the agency head may not “prevent or prohibit” the inspector general “from initiating, carrying out, or completing any audit or investigation.” The Inspector General Act requires inspectors general to report to Congress on any incidents in which the agency resists or objects to oversight activities. (Certain agency heads, such as the director of the CIA, may prohibit an inspector general from carrying out an investigation if that investigation threatens national security or other vital interests, but these are the exceptions, not the rule.)

And in practice, the president, agency heads and congressional committees may, and do, refer issues to inspectors general for investigation on a routine basis. The Inspector General Act also includes certain codified referral provisions. For example, under Section 8(D), the commissioner of internal revenue may request that the Treasury Department’s inspector general investigate issues related to the IRS; if the inspector general declines to do so, he or she is required to provide a written explanation to the commissioner.

Presidents have also used executive orders to coordinate and oversee inspector general activity. In 1981, President Ronald Reagan issued Executive Order 12301, establishing the President’s Council on Integrity and Efficiency. The executive order tasked the members of the President’s Council––primarily inspectors general of major executive branch agencies and departments––with addressing “problems concerning fraud and waste which exceed the capability or jurisdiction of an individual agency.” The order clarified that the council would not interfere with existing lines of authority and responsibility within the agencies. Following the 1988 amendments to the Inspector General Act, which created additional inspector general positions, Reagan issued an updated executive order to add the new statutory officers to the President’s Council.

In 1992, President George H.W. Bush issued Executive Order 12805, establishing the Executive Council on Integrity and Efficiency and reconstituting the President’s Council on Integrity and Efficiency. The Executive Council included statutory inspectors general who were not represented on the President’s Council––mainly inspectors general who were not presidential appointees. The order also instructed the Executive Council to develop programs addressing interagency fraud and abuse.

Four years later, in 1996, President Bill Clinton issued Executive Order 12993, instructing the chairperson of the President’s Council to create an Integrity Committee. According to the order, the new committee would review and refer for investigation allegations of wrongdoing against inspectors general to the appropriate executive branch agency.

In other words, the idea of presidential coordination and direction of inspector general activity on matters of national priority is relatively well established. And there are even examples of multiagency inspector general collaborations. The Justice Department inspector general, for example, has teamed up with the Treasury Department inspector general to investigate white supremacist activity in federal law enforcement. It has also produced investigative work product with the State Department and CIA inspectors general.

And, of course, Congress has the authority to task inspectors general much more directly. In 2008, Congress enacted the Inspector General Reform Act, amending the 1978 law. The 2008 act essentially codified the prior executive orders in statute, replacing the two councils with a new Council of the Inspectors General on Integrity and Efficiency. The language of the statute closely mirrors the language of the prior executive orders, with the addition of new reporting requirements. After the 2008 act, the new council became the primary oversight and coordinating body for the inspector general community, tasked with “address[ing] the integrity, economy, and effectiveness of the issues that transcend individual government agencies.”

You can see the rudiments of the system needed now in this history. Under current law, President Biden could issue an executive order instructing each Cabinet officer to refer classes of matters to the inspector general within that officer’s department. Each Cabinet officer would ask each inspector general to assemble, organize, investigate—to the extent a matter has not already been investigated—and report on specified classes of allegations arising during the previous administration. Such classes might include (a) allegations of abuse of power; (b) allegations of political misuse of government resources or authorities; and (c) allegations of the use of government resources or authorities to advantage or for the personal gain of political appointees, Trump family members or associates, or Trump businesses.

It is also possible to imagine under a current law the creation of a mechanism—perhaps through the existing President’s Council—to coordinate the activities of the various inspectors general and to create out of the voluminous work product they would assemble a kind of meta-report that would aggregate their work and spotlight common themes among them.

In other words, Biden could implement a modest version of the inspector-general-by-truth-commission idea using an executive order. In the absence of congressional cooperation on a more ambitious vision, a certain amount is possible within the executive branch alone.

But there are important gaps in current law that only Congress can address. The inspector general system was, after all, not built for the purpose we are describing. It was built to have an investigative mechanism embedded within each agency for the purpose of investigating misconduct within that agency. It was not intended to report on a pervasively corrupt administration, much of whose corruption flowed from the very top.

The most important gap is that there is no inspector general for the White House itself—and no inspector general has jurisdiction over the president. The misconduct that took place within agencies during the Trump administration, however, was often in iterative conversation with the White House. If you want to understand how, for example, the Justice Department came to amend its sentencing memo in the case of Roger Stone, a certain degree of access to the activity of the president and his top aides seems critical. And if you’re trying to understand activity within the White House itself, it’s obviously central. How, for example, did the president decide to do violence to the Hatch Act by having Republican National Convention events on the White House lawn? How many times did Trump consult Trump Organization business interests before making policy? These are questions no current inspector general can answer but that a huge volume of White House records and witnesses could shed light on. Realistically, only Congress can authorize such an investigation outside of the criminal process.

Another important shortfall is that the institutional performance of the various inspectors general is dramatically variable. Some offices are extremely strong and capable of major pieces of written investigative work product. Some are, well, less so. Creating a known pathway by which offices can share resources, personnel and capabilities for this project would be helpful in evening out the capacity to produce high-quality work product.

Another key gap is that the referrals permitted by current law do not create obligations on the part of the inspectors general either to investigate or to do work within any specified time period. This would mean that an inspector general disinclined to use limited resources to examine matters within the purview of the review would have no particular fire under his or her butt to do so. And it would also mean that the project is kind of open ended from a timing point of view, rather than having a specified date on which each inspector general would report and a subsequent date on which the coordinating mechanism would issue its broader report. One important reason, in other words, for Congress to get involved might be to put limits on the enterprise—to prevent it from becoming a never-ending “witch hunt.”

A final big gap is resources. Give every inspector general a significant new mission, and it becomes a significant distraction from other business. Only Congress can resource this project appropriately.

There’s one other major reason for Congress, rather than President Biden, to define the mission: precedent. It is a potentially dangerous precedent for a new administration to come in and task inspectors general throughout the government to dig dirt on its predecessor. In this case, the action would be justified. But it’s not hard to imagine it also creating a template for actions in situations far less worthy. Having Congress put parameters on the investigation in legislation thus seems important. Doing so would necessarily involve Congress’s putting its stamp of approval on the underlying contention that this is not some mere investigation of policy differences but an extraordinary situation of widespread abuse and corruption that requires a unique policy and investigative response.

In short, it would help a great deal to have Congress write the entire framework into law—to require action by the inspectors general, to authorize a White House investigation, to impose deadlines on each component for the project, and to clarify and limit the precedential value of the exercise. This may not be possible given the current alignment of political power in the Senate, but it is the ideal, and it’s worth sketching out what a piece of legislation to establish this framework might look like. Here are the rough parameters.

Legislation would include:

  • Instructions to all inspectors general to accept complaints within a specified period of time—say, six months—regarding agency misconduct during President Trump’s term of office covering specified categories of misconduct. These specified categories would include the three broad areas described above and would specifically not include disagreements about policy decisions absent some suggestion of wrongdoing. 
  • Instructions to all inspectors general to investigate such allegations to the extent the conduct in question had not already been addressed by prior investigations and to the extent an initial inquiry does not result in their dismissal as insubstantial or meritless.
  • Instructions to all inspectors general to report within two years on all matters submitted within the window for complaints.
  • Clear authorization for the inspectors general to share resources and personnel for purposes of conducting these investigations. 
  • The creation of a temporary inspector general and staff for the sole purpose of conducting similar activity with respect to the White House during the same period, perhaps with a longer, three-year deadline given the volume of likely material at issue. 
  • The creation of a coordinating mechanism among the various inspectors general to assemble, organize and draw conclusions from the component reports.
  • The imposition of a three-year deadline for the issuance of this final report.
  • The provision of substantial new resources to the inspectors general so they can take on this new mission while not abandoning their day-to-day functions.

The broad point here is that people need to be thinking about creative mechanisms of investigative accountability. The criminal process covers only the tiniest slice of the problem. How much of the broader pie does the political culture want to leave to congressional committees? To special investigative commissions? How much should it just ignore and leave to historians? And are there other systems people should be considering?