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Jul 21, 2022; Washington DC, United States;  Congressional staff prepares for the primetime public hearing before the House select committee to investigate the January 6 attack on the United States Capitol held on July 21, 2022. Mandatory Credit: Jack Gruber-USA TODAY
FixGov

Who is watching the watchdogs?

An inspector general is once again making front-page news. Unfortunately, he is not exposing misconduct, making recommendations for improving government, or keeping high government officials honest, which is the role of an inspector general. Rather, this inspector general allegedly covered up government misconduct.

Joseph Cuffari, the inspector general of the Department of Homeland Security, allegedly knew that the Secret Service had deleted text messages related to the January 6 attack on the Capitol, but for many months failed to notify Congress. Such inaction may make it much more difficult to retrieve these texts. Even worse, according to media reports, Cuffari allegedly prevented his own investigators from seeking to recover the text messages.

This is not the first time Cuffari has been accused of acting improperly. According to a recent Washington Post article, Cuffari was investigated for ethical lapses when he was an agent working for the Department of Justice Office of the Inspector General.

The Chairs of the House Homeland Security Committee and the January 6 Committee have called on Cuffari to step aside and allow a different inspector general to investigate the missing Secret Service text messages. That is a reasonable request, given the fact that Cuffari’s actions will be under scrutiny.

The serious allegations regarding Cuffari also raise the larger question—“Who is watching the watchdogs?” We need a better way to hold IGs accountable and a process to remove the very few who are not adequately performing their challenging responsibilities.

The 75 federal IGs play a critical role in our democracy by exposing government waste, fraud, and abuse and seeking to make the government more effective, efficient, and honest. In the large federal agencies, the IG is appointed by the President and confirmed by the Senate, while in smaller agencies the IG is typically appointed by the agency head.

According to the Inspector General Act, IGs should be selected for their non-partisan qualifications. They do not have a term of office and ordinarily remain in their positions when Administration’s change. I served as an IG over four Presidential Administrations, both Republican and Democrat, first as the IG of the Justice Department for 11 years and then in the role of acting IG of the Department of Defense for over 4 years.

During that time, I saw most of my IG colleagues performing their important duties in an exemplary manner. Their work returned billions of dollars to the federal treasury and held powerful government officials accountable for misconduct.

But I also witnessed, in a few cases, IGs who did not have the appropriate skill set or who were not suited temperamentally for their role. And a few IGs began underperforming over time and did not continue to make the hard decisions their job required.

In short, we need to protect the independence of the vast majority of IGs who handle their difficult assignments capably, but find a better way to address the few inspectors general who act improperly or who do not have the experience and backbone for the role. In effect, we need a better answer to the question of who is watching the watchdogs.

Recommendations

First, the removal process for IGs should be clarified. IGs do not have a term of office and can be removed by the President. According to the IG Act, the President has to give the reasons for the dismissal to Congress and wait 30 days before removing the IG, which is intended to discourage the removal of IGs for partisan reasons.

Even that modest requirement is not always followed. In what the Washington Post called “slow motion Friday night massacres,” President Trump removed a string of IGs in the last year of his Administration without providing the specific reasons for the removal or waiting 30 days. Full disclosure­—I was one of the IGs he replaced. The IG for the Intelligence Community and the State Department IG were similarly replaced peremptorily, without adequate explanation.

Some have proposed protection against removal of IGs without “just cause.” Such a provision, however, would probably not survive a constitutional challenge, particularly given the Supreme Court’s recent decision in Seila Law, which invalidated a just cause dismissal provision that applied to the President’s ability to remove the head of the Consumer Finance Protection Bureau.

However, Congress should clarify that the President must give the specific reasons for any IG dismissal­—not just cite a general loss of confidence.

Second, I recognize that replacing any IG is fraught­—even for the few who deserve to be replaced. President Obama was criticized for replacing the IG for AmeriCorps without adequate explanation. And President Biden, who regularly expresses his support for IGs, has been hesitant to replace IGs since taking office.

Congress should therefore consider term limits for IGs. Some remain in their posts too long. I served for 11 years as the Department of Justice IG, and after that amount of time change was good for the organization (and for me). Other law enforcement and oversight officials outside the IG community have fixed terms­—for example, the FBI Director has a term (10 years), as does the head of the Government Accountability Office (15 years). IGs similarly should have term limits.

Third, we should improve the mechanism for investigating allegations of improper conduct by IGs. The coordinating group of inspectors general, called the Council of Inspectors General on Integrity and Efficiency (CIGIE), has an Integrity Committee of IGs that investigates allegations of misconduct raised against IGs and their senior staff. According to news reports, for a long time the Integrity Committee was already conducting an investigation of allegations of misconduct against IG Cuffari, and the latest issue involving Secret Service text messages may result in another Integrity Committee investigation.

But neither CIGIE nor the Integrity Committee has sufficient staff or a permanent budget. Rather, Integrity Committee investigations are conducted by other IGs that volunteer to take on a particular investigation in addition to their regular responsibilities. As a result, the quality of Integrity Committee investigations is inconsistent, they take far too long, and they do not always get the appropriate attention they deserve. It may be many months, if not years, before the Integrity Committee completes any investigation of Cuffari’s conduct.

Legislation is needed to beef up the Integrity Committee and give it a permanent staff, so that allegations of misconduct against IGs can be conducted credibly, consistently, and quickly. And CIGIE itself needs a dedicated budget, rather than relying on funding through contributions from individual IGs.

Fourth, assigning responsibility to CIGIE, or creating an independent committee, to promulgate minimum standards of efficiency and effectiveness for IGs should be explored. This committee could make recommendations to the President on removal of an IG who does not meet those minimum standards, even absent a specific allegation of misconduct. The committee could consist of a few widely respected IGs. Or a committee consisting of the Chair of CIGIE, the head of the Government Accountability Office, and the Deputy Director of the Office of Management and Budget could perform that role.

Recommendations from such a committee could spur the Administration to decide to remove an IG who warrants dismissal, while maintaining the independence of other IGs. It would also be fairer and more objective than having the head of the agency recommending to the President the dismissal of an IG. In the past, agency heads have sometimes sought to remove effective IGs who were doing their jobs and holding their agencies accountable.

In sum, we need a better way to remove IGs who are ineffective or who engage in wrongdoing. One underperforming IG­—and certainly one who commits misconduct­—can undermine the credibility of the entire IG community. In these polarized times, with confidence in government plummeting, we need to ensure that all IGs are performing their critical assignments effectively and responsibly. Even watchdogs need watching.

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