All Inspectors General Need Testimonial Subpoena Authority, Watchdogs Say

All inspectors general should have testimonial subpoena authority in order to better conduct their oversight work, federal watchdogs testified on Thursday. 

Allison Lerner, National Science Foundation IG and chair of the Council of the Inspectors General on Integrity and Efficiency; Kevin Winters, Amtrak IG and chair of CIGIE’s integrity committee; and Michael Horowitz, Justice Department IG, testified before the Senate Homeland Security and Governmental Affairs Committee on Thursday as the top lawmakers on the committee craft and consider legislation to protect watchdogs. 

Without testimonial subpoena authority, offices of inspector general “are unable to obtain potentially critical evidence from former federal employees, employees of federal contractors and grant recipients, and other non-government witnesses unless they voluntarily agree to be interviewed,” said Horowitz, who previously served as CIGIE chair, in his prepared remarks. “For example, a federal employee’s resignation or retirement enables the former employee to avoid being interviewed by an OIG about serious misconduct the former employee allegedly engaged in while working for the federal government.”

A recent review from Horowitz’s offices found that “in more than 10% of the misconduct cases pending before the FBI’s Office of Professional Responsibility in [fiscal] 2017 and [fiscal] 2018, the FBI employee retired or resigned prior to the disciplinary process being completed,” Horowtiz said. “We further found that the FBI’s Office of Professional Responsibility closed those cases without regularly documenting substantiation decisions.”

Lerner expressed a similar sentiment. “Because most IGs lack this authority they cannot obtain potentially critical evidence related to alleged wrongdoing from certain individuals unless they voluntarily agree to be interviewed,” she said. 

Sen. Rob Portman, R-Ohio, ranking member on the committee, said he wondered if this would need a sunset date of maybe four to six years in order to avoid abuse of authority. 

“Congress always has the ability to revoke an authority it’s granted. Our concern with the sunset provision is that it’s a blunt instrument,” Lerner replied. “Our preference would be to have a requirement to have use of these authorities reviewed by an independent entity like CIGIE or [the Government Accountability Office] and allow the results of that review to inform Congress' decision about whether to continue or to revoke this authority.” 

However, if a sunset date has to be enacted, “we would ask that the period be long enough to enable us to have sufficient numbers of examples to make the case for the use of the authority,” such as 10 years, she added. 

Sen. Maggie Hassan, D-N.H., who introduced a bill with Sen. Chuck Grassley, R-Iowa, to give IGs this authority, noted that IGs have had the ability to subpoena for documents for over 40 years.

Lerner said IGs have used that “very successfully” over the years and have a “strong process” to ensure that these subpoenas are appropriate, which they will “build on” for testimonial subpoenas. There have been “very very few cases where an IG subpoena has not been upheld” in court, she said. 

The Defense Department IG has had testimonial subpoena authority since 2009, which can be a “model because it has worked so well,” Horowitz said. 

Winters said that CIGIE’s Integrity Committee can work to prevent abuse of this authority as this is “squarely within our jurisdictional realm.” This reform is one of several for which a diverse group of 21 organizations advocated in a letter to the committee’s leadership earlier this month. 

Other reforms the three IGs told lawmakers they supported were: narrowing who can serve as acting IGs, bolstering IG offices’ ability to work during government shutdowns and requiring the president to give Congress at least 30 days' notice before removing or transferring an IG. These provisions have been included in pieces of legislation that have already been introduced during this Congress. 

As for recruiting and retaining a pipeline of talent, “I think one of the best things that we can do is ensure that people who are my daughters’ age––I have a daughter in college and one in law school––that they understand the opportunities that are available in the oversight community and see us as viable career paths,” Lerner said. “We have many people who are going to be aging out of leadership roles and we have got to ensure that we have a new generation coming forward that are willing to engage with us.” 

She added that CIGIE has an IG candidate panel to help the president and agency heads in filing IG roles. Some IG positions require an agency appointment, as opposed to presidential nomination. 

Portman pointed out that he and Sen. Gary Peters, D-Mich., chairman of the Senate Homeland Security and Governmental Affairs Committee, sent a letter to Biden in May calling on him to fill the over dozen IG vacancies at the time. Portman said he was pleased Biden has made some progress, but said all must be filled. 

There are currently 14 IG positions without permanent leadership. Most recently, President Biden announced on October 6 his intent to nominate individuals to be IGs at the Export-Important Bank, Federal Housing Finance Agency and Tennessee Valley Authority.