Justice Watchdog Has Legal, If Not De Facto, Independence from Trump

The Justice Department’s inspector general is maintaining radio silence on an unusual tweet from President Trump this weekend.

That’s the one that prompted Deputy Attorney General Rod Rosenstein to ask the watchdog to broaden his array of investigations into federal law enforcement’s handling of the 2016 election issues to include Trump’s notion that the FBI planted a “spy” in his campaign.

“I hereby demand,” Trump tweeted on Sunday, “and will do so officially tomorrow, that the Department of Justice look into whether or not the FBI/DOJ infiltrated or surveilled the Trump Campaign for Political Purposes - and if any such demands or requests were made by people within the Obama Administration!”

But given the statutory independence of inspectors general (whose founding statute turns 40 this year), specialists see a large difference between “demanding” and “asking.” Justice IG Michael Horowitz, whose long-in-the-works report on the 2016 election is due out any day, doubles as head of the Council of Inspectors General on Integrity and Efficiency, which stresses IG independence as a central theme.

Rosenstein responded on Sunday by saying, “If anyone did infiltrate or surveil participants in a presidential campaign for inappropriate purposes, we need to know about it and take appropriate action.”

Justice spokeswoman Sarah Flores in return elaborated, “The department has asked the inspector general to expand the ongoing review of the FISA application process to include determining whether there was any impropriety or political motivation in how the FBI conducted its counterintelligence investigation of persons suspected of involvement with the Russian agents who interfered in the 2016 presidential election. As always, the inspector general will consult with the appropriate U.S. attorney if there is any evidence of potential criminal conduct.”

Trump was scheduled on Monday to meet with Rosenstein and FBI Director Christopher Wray and National Intelligence Director Dan Coats, a gathering at which the topic is likely to arise. Critics of Trump’s view accuse him of interfering with the top law enforcement agencies and argue that the FBI regularly relies on informants when chasing down clues of possible crimes such as foreign interference in U.S. elections.

But few news accounts of the ongoing clash have zeroed in on the fact that a president in theory does not have power to dictate what investigations an inspector general must conduct.

“Horowitz should be very careful to make sure the president, Congress, and the media understand that he, and he alone, has decided to take this on,” said Paul C. Light, a professor of public service at New York University who has written widely on IGs. “He should explain his decision clearly and remind the president in particular that this is his call under the 1978 IG Act. He does not want to give any indication that he is operating under presidential or DoJ orders.”

A “good shot to fire” for the Justice watchdog, Light told Government Executive, “is to reference the 1978 IG act in announcing his authority to undertake the investigation, as well as his complete freedom to pursue the investigation without interference from above.” The statute reads: “Neither the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the inspector general from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation."

Also worth noting, Light said, is that “the DOJ IG is under the authority, direction and control of the attorney general with respect to investigations of ongoing civil or criminal investigations, but this is not such a case. It may lead to indictments perhaps, but it is not an investigation of an ongoing criminal investigation.”

Attorney General Jeff Sessions has recused himself from all matters relating to Russian interference in the 2016 election because of his own role in the campaign.

Chuck McCullough, the former IG of the 17-agency Intelligence Community now practicing national security law with Tully Rinckey PLLC, had a different view. “People run around yapping about ‘IG independence,’ but, in the real world, IGs are definitely not untouchable,” he said in an email to Government Executive.

“Like other appointees, they serve at the will of the president; they can be fired by the president after a mere ‘notice period’ to Congress,” McCullough added. “And, with a few notable exceptions, Congress has proven over and over again that they are unwilling to go to any great lengths to protect IGs when things get dicey.”

He said: “In my opinion, refusing a request for a review—coming from the president—would be tantamount to insubordination.  The notion of ‘independence’ really comes into play with respect to the manner in which the review is performed. I am confident that Michael Horowitz will ensure that whatever his office does is accomplished in an independent, objective and thorough manner.”