Another Friday night has brought another irregular ouster of a federal official whose work should be insulated from politics.
Four days later, U.S. Senator Chuck Grassley, a self-styled warrior for oversight and accountability in Washington, has said nothing. Neither has Senator Joni Ernst, who like Grassley serves on the committee that oversees the justice system.
“AN ATTACK ON THE CONCEPT THAT INVESTIGATIONS SHOULD BE CONDUCTED IN A NONPARTISAN MANNER”
A late Friday news release under the name of U.S. Attorney General William Barr declared that Geoffrey Berman “is stepping down after two-and-a-half years of service as United States Attorney for the Southern District of New York.” According to the statement, President Donald Trump was to nominate Securities and Exchange Commission Chair Jay Clayton for Berman’s job.
The New York Times noted, “Mr. Clayton is not a litigator or a former prosecutor, which often are prerequisites to being named a United States attorney, especially in a jurisdiction as prominent as the Southern District.”
Barr’s statement also claimed Trump “has appointed Craig Carpenito, currently the United States Attorney for the District of New Jersey, to serve as the Acting United States Attorney for the Southern District of New York, while the Senate is considering Jay Clayton’s nomination.” Carpenito told his staff the next day that Barr had indicated Berman was voluntarily resigning. “He was shocked to learn later in the evening that Berman hadn’t resigned at all and was refusing to do so.”
Berman released an extraordinary statement late on June 19.
I learned in a press release from the Attorney General tonight that I was ‘stepping down’ as United States Attorney. I have not resigned, and have no intention of resigning, my position, to which I was appointed by the Judges of the United States District Court for the Southern District of New York. I will step down when a presidentially appointed nominee is confirmed by the Senate. Until then, our investigations will move forward without delay or interruption. I cherish every day that I work with the men and women of this Office to pursue justice without fear or favor — and intend to ensure that this Office’s important cases continue unimpeded.
The U.S. Attorney’s office in Manhattan has investigated several Trump allies, including Rudy Giuliani, and prosecuted the president’s former personal lawyer Michael Cohen. Former National Security Adviser John Bolton asserts that Trump already interfered in the office’s case against a Turkey state bank, as a favor to the Turkish president.
Carrie Cordero, a senior fellow and general counsel for the Center for a New American Security, commented via Twitter, “Hard to imagine any legitimate reason to fire US Attorney 6 months before election whose office is conducting investigations of the president’s associates – and replacing him w/ someone with no prosecutorial experience – other than undermining or obstructing those investigations.” Indeed, more than 130 former prosecutors in the office signed an open letter condemning Barr’s decision to remove Berman “without cause.”
“The actions of the President and the Attorney General are an attack on the concept that investigations should be conducted in a nonpartisan manner,” the former prosecutors wrote. “They are politicizing an office that for more than 200 years has remained apolitical, and are undermining confidence in our criminal justice system. We call on our elected officials – Republicans and Democrats alike – to take all appropriate action to protect the administration of justice in the Southern District of New York and elsewhere from this kind of political interference.”
Barr claimed on June 20 that Trump had fired Berman, an assertion the president denied. The U.S. attorney eventually agreed to leave on the condition that his deputy Audrey Strauss, “a career prosecutor whose integrity has not been questioned,” will be in charge, pending confirmation of a successor.
GRASSLEY, ERNST AVOID COMMENT
Grassley and Iowa’s junior Senator Joni Ernst both serve on the Senate Judiciary Committee, which considers U.S. attorney nominees and Department of Justice officials. Neither has released any statement on the attempt to force Berman out, nor have they acknowledged the controversy on their social media feeds.
Having cultivated an image as a champion of oversight for decades, Grassley might have been expected to raise his voice against what looks like political interference in criminal investigations. He has a big megaphone, with almost 600,000 Twitter followers.
The only statement he tweeted over the weekend was about the height of corn growing on his family’s farm.
Ernst has used her Twitter feed to comment on a variety of issues in recent days, but if she noticed that the attorney general lied to the public as he tried to install a Trump loyalist, she didn’t let on.
MOVE FOLLOWS END TO GRASSLEY’S MINI-REVOLT OVER INSPECTORS GENERAL
Barr’s latest insult to the rule of law came one day after Grassley stood down from a half-hearted effort to hold the Trump administration accountable.
Earlier this month, the senator put a hold on two minor presidential appointees, demanding an explanation for Trump’s firing of the inspectors general for the intelligence community and State Department, Michael Atkinson and Steve Linick. Grassley lifted his hold on June 18, saying the White House had “fulfilled the statutory notice requirement of the Inspector General Reform Act.” The same day, he introduced a bipartisan bill that “spells out Congress’ expectations from the Executive Branch when the President decides to remove an IG and prevents conflicts of interest that can arise when IGs are replaced with political appointees.”
In statements enclosed in full below, Grassley noted he had “several concerns” about the reasons given for firing Linick and did “not agree that the provided reasons merited Mr. Atkinson’s removal.” Nevertheless, he acknowledged, the administration had complied with current law.
“Given the misinterpretation of the statute by successive administrations from both political parties, it’s apparent that Congress must clarify the statute to ensure inspectors general are able to continue operating without undue interference,” Grassley said, claiming his bill would accomplish that goal.
I expected the administration to give Grassley some fig leaf by pretending to have a legitimate reason for removing these and other agency watchdogs. Instead, the White House flaunted Trump’s retaliatory firings.
One official explanation provided was a transcript from a media availability, in which Trump admitted he thought Atkinson “did a terrible job. Absolutely terrible,” because he had transmitted a whistleblower complaint to Congress, as required by law.
Grassley’s statement for the Senate record noted that the law
does not require that a full investigation of a whistleblower’s allegations be completed before the information is provided to Congress. Reading such a requirement into the law could result in critical and relevant information not reaching the ODNI [Office of the Director of National Intelligence] or Congress in a timely manner, and could pose a chilling effect on whistleblowers’ willingness to report urgent concerns and other issues of waste, fraud, and abuse in the intelligence community.[16] That being said, I understand and appreciate the president’s irritation with this IG’s action being a factor in the House of Representative’s impeachment.
The White House transcript showed Trump saying of the person whose complaint sparked the impeachment process, “they give this whistleblower a status that he doesn’t deserve. He’s a fake whistleblower. And, frankly, somebody ought to sue his ass off.”
Grassley edited the president’s words to make them less crude.
In those remarks, the President also said that “they give this whistleblower a status that he doesn’t deserve. . . . And, frankly, somebody ought to sue [him].” To the extent that the President is referring to Mr. Aktinson’s determination that the whistleblower allegation at issue amounted to an urgent concern under the law, there remains a significant difference of legal opinion on this matter.[17] The President’s position is supported by the Department of Justice Office of Legal Counsel, and presidents routinely follow the legal determinations of that office.[18] However, whether or not the whistleblower’s allegation meets the legal definition of an “urgent concern” under the law, I obviously do not agree that person should be sued or otherwise retaliated against.
I reject the premise that Grassley “obviously” doesn’t agree with retaliation against those who get in Trump’s way. He’s repeatedly given the president a pass on abuses of power. The result is episodes like the attempted “Friday night massacre” in the Southern District of New York.
___________
Appendix 1: June 18 news release from Senator Chuck Grassley
Grassley Leads Bipartisan Bill to Bolster Inspector General Protections
Jun 18, 2020
Blockade on nominees lifted following compliance with watchdog statuteWASHINGTON – Sens. Chuck Grassley (R-Iowa) and Gary Peters (D-Mich.) today introduced bipartisan legislation beefing up a 2008 inspector general (IG) protection law that has been routinely flouted by two successive administrations from both political parties. The Securing Inspector General Independence Act (S. 3994) is also cosponsored by senators Susan Collins (R-Maine), Dianne Feinstein (D-Calif.), James Lankford (R-Okla.), Tom Carper (D-Del.), Mitt Romney (R-Utah), Jon Tester (D-Mont.), Rob Portman (R-Ohio) and Maggie Hassan (D-N.H.).
“The Obama administration set bad precedent when it ignored the inspector general protection law, but a court upheld its actions, and the Trump administration applied the same standard. Congress should expect more of the same from future administrations if it doesn’t act to clarify the law. This bill spells out Congress’ expectations from the Executive Branch when the President decides to remove an IG and prevents conflicts of interest that can arise when IGs are replaced with political appointees,” Grassley said.
“Inspectors General work tirelessly to prevent waste, fraud and abuse, and ensure taxpayer dollars are being used efficiently. These watchdogs must be able to conduct their work independently and without the threat of political interference – yet recent attacks by President Trump threaten to undermine their ability to do their critical jobs. We must ensure that this, and future, administrations are not able to undercut the transparency and accountability that Inspectors General provide to the American people. I’m proud to help lead this important, bipartisan effort to shield these public servants from political interference and ensure they can continue to hold the federal government accountable to taxpayers,” said Peters, Ranking Member of the Senate Homeland Security and Governmental Affairs Committee.
“I have long been a strong advocate for the Inspectors General, who are vital partners in Congress’s effort to identify inefficient or ineffective government programs and to root out fraud and other wrongdoing. In 2008, I coauthored The Inspector General Reform Act with former Senators Claire McCaskill and Joe Lieberman that strengthened the IG system. This legislation we are introducing today clarifies and builds upon that law and will help ensure that IGs remain independent from inappropriate influence or pressure from the government agencies they oversee,” Collins said.
“In just a few months, President Trump has fired four inspectors general, some of whom we have now learned, were investigating potential wrongdoings by top Trump Administration officials. This is part of an alarming pattern of retaliation against those who are not loyal enough to President Trump or who dare to criticize him or his administration. These abrupt firings underscore the need to immediately address federal law to further protect these independent watchdogs who are charged with rooting out waste, fraud, and abuse and ensuring federal officials are accountable to U.S. taxpayers. Today, I am proud to introduce a bipartisan bill that aims to strengthen protections for the nation’s inspectors general by requiring the President to provide substantive rationale, including detailed and case-specific reasons for the removal of an IG. The bottom line is that IGs are a crucial part of our intricate system of checks and balances, and the removal of an inspector general should not be politically motivated. We simply cannot have Presidents firing independent watchdogs because he or she does not like an investigation they are pursuing,” Carper said.
“Inspectors general play a vital role in the health of our democracy by holding federal agencies accountable and ensuring proper oversight of taxpayer dollars. I appreciate Chairman Grassley’s leadership on this legislation, which is aimed at protecting and maintaining the independence of inspectors general,” Romney said.
“This bill makes clear that important and necessary steps must be taken before an Inspector General can be removed from their post. Congress must be given a detailed account of the reasons for the removal, and a full 30 days while the Inspector General remains on the job to consider those reasons. These protections are important to ensuring Inspector General independence and protecting whistleblowers who are essential in helping IGs root out waste, fraud, and abuse,” Portman said.
Though the Constitution establishes the President’s authority to manage executive branch employees, including the firing of IGs, the 2008 Inspector General Reform Act requires the president to provide Congress with a written explanation at least 30 days prior to removing an IG to prevent politically-motivated terminations. However, less than a year after it was enacted, President Obama fired AmeriCorps IG Gerald Walpin without providing sufficient details as Congress had intended under the law, prompting Grassley and bipartisan members of the Senate Homeland Security and Governmental Affairs Committee to push for more answers. A court later ruled that the administration wasn’t required to provide additional reasons prior to removing an IG – a case cited by the Trump administration when it initially refused to provide the level of details Grassley and his colleagues requested following President Trump’s removal of Intelligence Community IG Michael Atkinson and State Department IG Steve Linick.
The Securing Inspector General Independence Act clarifies the 2008 law by requiring any administration to provide “substantive rationale, including detailed and case-specific reasons” prior to removing an IG. It also limits the use of administrative leave for IGs, including during the 30 days following the removal announcement. Both presidents Obama and Trump used administrative leave to effectively sideline IGs during the 30-day period. To ensure the independence of the IG community, the bill requires acting IGs to be selected from among senior-level employees within the watchdog community. To protect the integrity of investigations and audits during an IG transition, the bill requires regular training to IG employees on their whistleblower rights.
The bill is endorsed by the National Whistleblower Center, Government Accountability Project, and the Partnership for Public Service. The Council on Inspectors General on Integrity and Efficiency was consulted during the bill’s formation. Legislative text is available HERE.
Grassley is also withdrawing objections to administration nominees after receiving additional reasons for the President’s decision to remove Atkinson and Linick. Grassley announced the holds after the White House Counsel initially refused to share those reasons.
“Although I do not agree with the President’s stated reasons for removing IGs Atkinson and Linick, my objection to these nominees was designed to prompt compliance with the IG Reform Act, which the President has now done,” Grassley said. In a statement for the Senate record removing his objections, he also noted that he similarly disagreed with the Obama administration’s stated reasons for removing IG Walpin, who was never reinstated.
Regardless of whether Congress agrees with a president’s stated reasons for removing an inspector general, the legal requirement to notify Congress shouldn’t go ignored. Failures to comply with the statute by two successive administrations from both political parties prompted Grassley’s introduction of the Securing Inspector General Independence Act to strengthen the 2008 law.
Appendix 2: Grassley Statement for Senate Record Regarding White House Compliance with IG Protection Law
June 18, 2020
Mr. President, I previously notified the chamber of my objection to the nominations of Marshall Billingslea, of Virginia, to be Under Secretary of State for Arms Control and International Security and Christopher C. Miller, of Virginia, to be Director of the National Counterterrorism Center, Office of the Director of National Intelligence. On June 12, 2020, I received two letters: one from the Department of State, which contained a copy of recent correspondence between the administration to the Council of the Inspectors General on Integrity and Efficiency (CIGIE) requesting that CIGIE investigate specific allegations into the conduct of the State Department Inspector General (State IG), Steve Linick, and another separate letter from the White House Counsel concerning the removal of Intelligence Community Inspector General (IC IG) Michael Atkinson.[1] Without making comment regarding the veracity of the allegations made against Mr. Linick, I believe that these letters fulfill the President’s requirement to provide Congress reasons for the removal of the IC IG and the State IG, as required by the Inspector General Reform Act. It is for this reason that I withdraw my objection to both Mr. Billingslea and Mr. Miller.
The letter from the White House Counsel regarding the removal of the (IC IG), repeats a previous letter from the White House which stated that the President had lost confidence in the IC IG. However, the White House Counsel enclosed with that letter a transcript of President Trump providing his reasons for removing Mr. Atkinson to the press, and has informed me that those reasons represent the President’s official explanation of Mr. Atkinson’s removal to Congress.[2] I believe that this transcript, and its transmittal to Congress, has fulfilled the statutory notice requirement of the Inspector General Reform Act.[3] It is for this reason that I withdraw my objection to Mr. Miller.
Here follow my comments to the President, including my actions and rationale: although the Constitution gives the President the authority to manage executive branch personnel, Congress has made it clear by law that should the President fire an inspector general, there ought to be a good reason for it.[4] No such reason was provided when the President informed Congress of the removal of Mr. Atkinson on April 3, 2020. Thus, in a bipartisan letter on April 8, 2020, my colleagues and I reminded the President of his requirement under the statute to provide reasons for removing an IG.[5] On May 15, 2020, the President notified Congress of his intent to remove Mr. Linick. This notification also lacked reasons for the removal spurring my solo letter on May 18, 2020, again reminding the President of his requirement to provide reasons.[6]
After a delay, and a personal call with the White House Counsel, I was promised a response to my letters that would fulfill the statutory notice requirement. On May 26, 2020, I received a response from the White House Counsel explaining the president’s constitutional removal authority, which I never questioned.[7] However, the letter still contained no reason for the removals as required by law. This failure to comply with the statute prompted my objection to both Mr. Miller and Mr. Billingslea on June 4, 2020.
On June 6, 2020, I asked the White House to provide written reasons for the removals. We discussed several issues. I took this opportunity to talk to the White House and I told them that I needed reasons for the firing of IGs to be submitted in writing.
On June 12, 2020, I received the enclosed letter from the State Department which finally fulfills the executive branch’s legal requirement to provide Congress reasons for an IG’s removal with regard to Mr. Linick.[8]
Here is my view on the firing of Mr. Linick. The State Department’s correspondence with CIGIE provided four reasons for Mr. Linick’s removal, all involving the investigation of the leak of information to a news reporter pertaining to an IG report, which the reporter claims to be based on information garnered from “two government sources involved in carrying out the investigation.”[9] The letter to CIGIE requests that they begin an investigation into Mr. Linick’s alleged transgressions, including his: 1) “failure to formally refer to CIGIE . . . the investigation of [the] leak”; 2) “hand selection” of the Department of Defense OIG to conduct the leak investigation; 3) “non-compliance with State Department Office of Inspector General (OIG) email policies”; and 4) refusal to supply Department of State leadership with a copy or summary of the leak investigation report despite “repeated requests” from State Department leadership.[10] These claims are as of yet unverified but the President has offered an additional briefing on the matter from State Department officials. I am in the process of scheduling such a briefing and reviewing the additional relevant information.
After reviewing the provided rationale, I have several concerns. Chief among them is that CIGIE does not traditionally conduct investigations into agency or OIG leaks. It reviews allegations against individuals but not IG offices, and generally lacks the funds and resources to conduct work outside of their narrow scope.[11] As a matter of course however, IGs do traditionally check each other’s work, and CIGIE often suggests that allegations against IGs or their offices be referred to peer IGs.[12] This is done when crucial IG independence must be maintained but the appearance of conflicts of interest may arise.[13] It would also not be uncharacteristic for an IG to safeguard the office’s statutorily required independence by potentially refusing to provide internal information to its parent agency. In short, although it would make little sense for CIGIE to conduct the leak investigation in the manner desired by the State Department, it would not be outside the bounds of precedent for one office of inspector general to conduct an investigation into another.
Although I have not yet had the opportunity to verify the allegations regarding Mr. Linick, as I noted earlier, the President retains the constitutional authority to manage executive branch personnel. My objection to these nominees was designed to prompt compliance with the IG Reform Act, which the President has now done with regards to Mr. Linick. Therefore, I am withdrawing my objection to Mr. Billingslea.
On June 12, 2020, I received the enclosed letter from the White House Counsel which finally fulfills the executive branch’s legal requirement to provide Congress reasons for an IG’s removal with regard to Mr. Atkinson.[14]
As it pertains to Mr. Atkinson: Even though the president satisfied the requirements of the law, I do not agree that the provided reasons merited Mr. Atkinson’s removal. In the provided transcript the President states, “I thought [Atkinson] did a terrible job. Absolutely terrible. . . But ask him, ‘Why didn’t you go and see the [transcript of my phone call with the Ukrainian president]?’ There was no rush. [Atkinson] said, ‘Oh we’d have to rush it.’” I infer from this statement that the reason(s) that the President removed Mr. Atkinson was because of the speed with which he sought to bring the whistleblower information to Congress, and/or his role generally in the impeachment process.
With respect to this objection concerning Mr. Atkinson’s supposed haste, it is necessary to review the IC IG’s responsibility under the Intelligence Authorization Act for Fiscal Year 2010. The Act provides the IC IG only 14 days to determine if an “urgent concern” “appears credible” and transmit that information to the Office of the Director of National Intelligence (ODNI).[15] Notably, the law also does not require that a full investigation of a whistleblower’s allegations be completed before the information is provided to Congress. Reading such a requirement into the law could result in critical and relevant information not reaching the ODNI or Congress in a timely manner, and could pose a chilling effect on whistleblowers’ willingness to report urgent concerns and other issues of waste, fraud, and abuse in the intelligence community.[16] That being said, I understand and appreciate the president’s irritation with this IG’s action being a factor in the House of Representative’s impeachment.
In those remarks, the President also said that “they give this whistleblower a status that he doesn’t deserve. . . . And, frankly, somebody ought to sue [him].” To the extent that the President is referring to Mr. Aktinson’s determination that the whistleblower allegation at issue amounted to an urgent concern under the law, there remains a significant difference of legal opinion on this matter.[17] The President’s position is supported by the Department of Justice Office of Legal Counsel, and presidents routinely follow the legal determinations of that office.[18] However, whether or not the whistleblower’s allegation meets the legal definition of an “urgent concern” under the law, I obviously do not agree that person should be sued or otherwise retaliated against.
My objection to these nominees was designed to prompt compliance with the IG Reform Act, which the President has now done with regards to Mr. Atkinson. Therefore, I am withdrawing my objection to Mr. Miller.
Although some may want to believe that this is a new issue unique to this administration, it certainly is not.[19] In July of 2009, then President Obama removed the Corporation for National and Community Service (CNCS) Inspector General, Gerald Walpin from his post in a very similar manner and also did not provide reasons for removal.[20] This began a bout of negotiations that resulted in not only the hold of several presidential nominees but also a bicameral congressional investigation into the matter.[21] In that case, I similarly pushed for compliance with the statute, held up a nominee to obtain information, and disagreed with the stated reasons for Mr. Walpin’s removal. In the end, Mr. Walpin was never reinstated.[22]
Given the misinterpretation of the statute by successive administrations from both political parties, it’s apparent that Congress must clarify the statute to ensure inspectors general are able to continue operating without undue interference. So I am introducing a bipartisan bill today to accomplish just that.
[1] Letter from Mary E. Taylor, Assistant Sec’y of State, Bureau of Legislative Affairs, to Charles E. Grassley, U.S. Senator (June 12, 2020) (enclosing Letter from Brian J. Bulatao, Under Sec’y of State for Mgmt., U.S. Dep’t of State, to Michael E. Horowitz, Chair, Council of the Inspectors Gen. on Integrity & Efficiency (June 8, 2020)); Letter from Pasquale A. Cipollone, White House Counsel, to Charles E. Grassley, U.S. Senator (June 12, 2020) (enclosing transcript of Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, White House (Apr. 5, 2020), available at https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vice-president-pence-members-coronavirus-task-force-press-briefing-19/).
[2] Letter from Donald J. Trump, President of the United States, to Senate Comm. on Intelligence (Apr. 3, 2020); see also Letter from Barack H. Obama, President of the United States, to Joseph R. Biden, President of the U.S. Senate, and Nancy P. Pelosi, Speaker of the U.S. House of Representatives (June 11, 2009).
[3] 5 U.S.C. app. §3(b).
[4] S. Rep. No. 110-262, at 8 (2008) (reporting on S. 2324, 110th Cong. (2008)).
[5] Letter from Charles E. Grassley et al., U.S. Senators, to Donald J. Trump, President of the United States (Apr. 8, 2020).
[6] Letter from Charles E. Grassley, U.S. Senator, to Donald J. Trump, President of the United States (May 18, 2020).
[7] Letter from Pasquale A. Cipollone, White House Counsel, to Charles E. Grassley, U.S. Senator (May 26, 2020).
[8] Letter from Donald J. Trump, President of the United States, to Charles E. Grassley, U.S. Senator (June 12, 2020); see 5 U.S.C. app. §3(b).
[9] Letter from Brian J. Bulatao, Under Sec’y for Mgmt., U.S. Dep’t of State, to Michael E. Horowitz, Chair, Council of the Inspectors Gen. on Integrity & Efficiency (June 8, 2020).
[10] Id.
[11] Council of the Inspectors Gen. on Integrity & Efficiency, Presidential Transition Handbook: The Role of Inspectors General and the Transition to a New Administration 13 (Oct. 4, 2016), available at https://www.ignet.gov/
sites/default/files/files/Presidential_Transition_Handbook_Web.pdf (explaining that CIGIE’s Integrity Committee is “responsible for investigating allegations against IGs, their senior staff, and OIG employees acting with the knowledge of the IG or whose alleged misconduct is related to an allegation against the IG.”); Council of the Inspectors Gen. on Integrity & Efficiency, Fiscal Year 2019 Agency Financial Report 24 (Nov. 13, 2019), available at https://www.ignet.gov/sites/default/files/files/
2019%20CIGIE%20Agency%20Financial%20Report.pdf (Showing that CIGIE received no direct appropriations); id. at 17 (showing that CIGIE only has 29 full time staff).
[12] See, e.g., Press Release, U.S. Dep’t of Justice, Former Acting Inspector General for the U.S. Department of Homeland Security Indicted on Theft of Government Property and Scheme to Defraud the United States Government (Mar. 6, 2020), available at https://www.justice.gov/opa/pr/former-acting-inspector-general-us-department-homeland-security-indicted-theft-government.
[13] See Letter from John H. Glenn, Retired U.S. Senator, to Ronald H. Johnson, Chairman, Senate Comm. on Homeland Sec. & Gov’tal Affairs, and Jason E. Chaffetz, Chairman, House Comm. on Oversight & Gov’tal Reform (July 23, 2015) (stating, “The success of the IG Act is rooted in the principles on which the Act is grounded—independence, direct reporting to Congress, dedicated staff and resources, unrestricted access to agency records, subpoena power, special protections for agency employees who cooperate with the IG, and the ability to refer criminal matters to the Department of Justice without clearing such referrals through the agency. We considered these safeguards to be vital when we developed the Act and they remain essential today. No other entity within government has the unique role and responsibility of Inspectors General, and their ability to accomplish their critical mission depends on the preservation of the principles underlying the Inspector General Act.”).
[14] Letter from Pasquale A. Cipollone, White House Counsel, to Charles E. Grassley, U.S. Senator (June 12, 2020) (enclosing transcript of Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, White House (Apr. 5, 2020), available at https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vice-president-pence-members-coronavirus-task-force-press-briefing-19/); 5 U.S.C. app. §3(b).
[15] 50 U.S.C. § 3033(k)(5).
[16] S. Rep. No. 111-223, at 46 (2010) (reporting on S. 3611, 111th Cong. (2010) and finding that the congressional committee wanted a timely open line of communication from intelligence community employees to committee members).
[17] News Release, Office of the Inspector General of the Intelligence Community’s Statement on the Council of the Inspectors General on Integrity and Efficiency’s Letter to the Department of Justice’s Office of Legal Counsel (Oct. 25, 2019), available at https://www.dni.gov/files/ICIG/Documents/News/ICIG%20News/2019/October%2025%20-%20ICIG%20Statement%20on%20
CIGIE%20Letter/ICIG%20Statement%20on%20CIGIE%20Letter.pdf; Letter from Michael E. Horowitz, Chairperson, and Alison C. Lerner, Vice Chairperson, Council of the Inspectors General on Integrity and Efficiency et al., to Steven A. Engel, Assistant Att’y Gen., Office of Legal Counsel, U.S. Dep’t of Justice (Oct. 22, 2019), available at https://ignet.gov/sites/default/
files/files/CIGIE_Letter_to_OLC_Whistleblower_Disclosure.pdf.
[18] “Urgent Concern” Determination by the Inspector General of the Intelligence Community, 43 Op. O.L.C., slip op. (Sept. 3, 2019), available at https://www.justice.gov/sites/default/files/opinions/attachments/2019/09/30/2019-09-03-urgent-concern-declass_0.pdf.
[19] See Josh Gerstein, W.H.: Fired IG “Confused, Disoriented”, Politico (June 16, 2009), available at https://www.politico.com/story/ 2009/06/ wh-fired-ig-confused-disoriented-023831; Walpin v. Corp. for Nat’l & Cmty. Servs., 630 F.3d 184, 187 (D.C. Cir. 2011); see also Peace Corps, Office of the Inspector Gen, Semiannual Report to Congress, October 1, 2016 to March 31, 2017, at 32 (2017), available at https://s3.amazonaws.com/files.peacecorps.gov/documents/
inspector-eneral/OIG_Semiannual_Report_to_Congress_Oct_2016_-_March_2017.pdf#page=32.
[20] Letter from Barack H. Obama, President of the United States, to Joseph R. Biden, President of the U.S. Senate, and Nancy P. Pelosi, Speaker of the U.S. House of Representatives (June 11, 2009).
[21] Staff of S. Comm. on Fin. and H. Comm. on Oversight and Government Reform, 111th Cong., The Firing of the Inspector General for the Corporation for National and Community Service 47 (Comm. Print 2009).
[22] Walpin, 630 F.3d 187.
Appendix 3: Relevant excerpt from the official White House transcript of President Trump’s remarks to the press on April 4, provided to Grassley as an explanation of the president’s reasons for firing the intelligence community’s inspector general
Q Mr. President, this is off topic. It’s about the announcement from last night. It’s a yes or no question, but not that we expect the answer to be yes or no.
But wasn’t Michael Atkinson doing the job of the Inspector General of the intelligence community, the job he was supposed to do, when he simply took the whistleblower complaint to Congress that hadn’t been taken previously? Wasn’t he doing the job that he was supposed to do, that American taxpayers were paying him to do? And why did you decide to terminate —
THE PRESIDENT: I thought he did a terrible job. Absolutely terrible. He took a whistleblower report, which turned out to be a fake report — it was fake. It was totally wrong. It was about my conversation with the President of Ukraine. He took a fake report and he brought it to Congress, with an emergency. Okay? Not a big Trump fan — that, I can tell you.
Instead of saying — and we offered this to him: “No, no, we will take the conversation” — where, fortunately, we had that transcript. If we didn’t have a transcript with the kind of deception and dishonesty that were practiced by the Democrats, I might not be standing here right now. Okay? Fortunately, we had a transcript and it was a perfect transcript, because even the lieutenant colonel admitted it was correct. Okay?
Wait a minute. Wait a minute. You asked a question.
So he took this whistleblower — and I keep saying, “Where’s the whistleblower?” Right? “And why was the whistleblower allowed to do this?” Why was he allowed to be — you call it fraudulent or incorrect transcript.
So we offered this IG — I don’t know him; I don’t think I ever met him. I don’t think I — he never even came in to see me. How can you do that without seeing the person? Never came in to see me. Never requested to see me. He took this terrible, inaccurate whistleblower report — right? — and he brought it to Congress.
We offered to have him see my exact conversation. It was all about the conversation, by the way. That was the whole thing, was about the conversation. Right? And then after he saw it, he must’ve said, “Wow,” because as I’ve said it many times and it drives you people crazy, it was a perfect conversation.
So instead of going and saying, “Gee, this is a terrible thing he said about the President’s conversation” — well, it was a fraud. I didn’t say that. And, by the way, you have the whistleblower. Where’s the informer? Right?
And here’s another question: Remember before I did the — before I gave the transcript — in other words, before I revealed the real conversation — where’s the second whistleblower? Remember the second whistle —
Wait, wait, wait, wait. There was going to be a second whistleblower. But after I gave the conversation, he just went away. He miraculously went away.
Where’s the informer? Because there was going to be this informer. Maybe Schiff was the informer. You ever think of that? He’s a corrupt guy. He’s a corrupt politician.
So, listen, I say this: Where’s the informer? Remember, the informer was coming forward. But I gave — because, see, I did one thing that surprised everybody. This gentleman right here said, “Boy, that was a shocker.” I revealed the conversation. I got approval from Ukraine because I didn’t want to do it without their approval. And they said, “Absolutely. You did nothing wrong.”
By the way, President of Ukraine, Foreign Minister said, “He did nothing wrong.” And over that, with 196 to nothing vote by the Republicans — not one dissenting Republican vote — dishonest Democrats impeached a President of the United States. That man is a disgrace to IGs.
All right, let’s go. Next. Please. He’s a total disgrace.
Q Mr. President, did you run by your decision to dismiss the Inspector General by Senator McConnell?
THE PRESIDENT: Okay, we’ll get off this because people want to talk about what we’re talking about. But let me just tell you something: That’s my decision. I have the absolute right. Even the fake news last night said, “He has the absolute right to do it.”
But ask him, “Why didn’t you go and see the actual conversation?” There was no rush. He said, “Oh we’d have to rush it.” He even said it was politically biased. He actually said that. The report could have been — you know who the whistleblower is, and so do you and so does everybody in this room, and so do I. Everybody knows. But they give this whistleblower a status that he doesn’t deserve. He’s a fake whistleblower. And, frankly, somebody ought to sue his ass off.
Q I just want to follow up, sir.
THE PRESIDENT: All right, it’s enough with the whistleblower.
Go ahead, please.
Top image: From left, official photos of Senator Chuck Grassley, Attorney General William Barr, and Senator Joni Ernst.