April 6, 2020
The President’s recent decision to remove IG for the Intelligence Community (ICIG) Michael Atkinson — who alerted Congress to the Ukraine whistleblower complaint — and rumors of Trump’s purge of the IG community, demand that Senators ensure that Trump’s new IG nominees are even more rigorously vetted than under normal circumstances.
After mounting pressure from Congress and the good government community, President Trump finally addressed some of the Inspector General (IG) vacancies he’s left across the federal government. Now we have to figure out if his nominees are right for the job. On Friday, the President announced his intention to nominate five IGs: the Special Inspector General for Pandemic Recovery, per the recently passed coronavirus stimulus bill, as well as IGs for the Central Intelligence Agency (CIA), Department of Defense (DoD), Department of Education (ED), and the Tennessee Valley Authority (TVA).
There are important facts and questions for the Senate to examine regarding the fitness of each of the President’s five intended IG nominees. The first is whether they meet the statutory qualifications for the job. The IG Act explicitly states that IGs shall be appointed by the President and confirmed by the Senate “without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations.” In addition, as the Congressional Research Service has noted, statutory IGs must be “independent, nonpartisan officials.” Such independence is derived both from statutory authority and the nomination and confirmation process. Given that mandate, Senators must determine whether each of the President’s five IG picks have demonstrated both the experience and the character to perform rigorous, independent oversight of the Trump administration.
The intended nominee who has received the most attention is Brian Miller, whom the President tapped to become Special Inspector General for Pandemic Recovery, a position created as part of the coronavirus stimulus bill. It is hard to question whether Miller meets the enumerated qualifications for IGs under the Act. He previously served as the Senate-confirmed IG for the General Services Administration for nearly ten years, managing a team of more than 300 auditors, agents, attorneys, and other staff. Miller also served in high-level positions within the Department of Justice (DOJ) and as an independent corporate monitor.
Despite Miller’s qualifications based on his past work, it’s Miller’s current job that raises questions about his independence. Miller serves as Special Assistant to President Trump and Senior Associate Counsel in the Office of White House Counsel. In that capacity, Miller “played a role in the White House response to document requests” during the impeachment probe. According to the Washington Post, a person familiar with Miller’s work on impeachment called his announced nomination “a political reward for his service during impeachment.” This fact alone has invited concern about Miller’s independence, but it may prove difficult for the Senate to learn enough about Miller’s role in the Trump White House to thoroughly vet him. During the confirmation hearing of then-Judge Brett Kavanaugh, the Trump administration withheld more than 100,000 pages of records from a Republican Committee Chairman about Kavanaugh’s time as a lawyer in the Bush administration, citing executive privilege. Because IGs are meant to be apolitical and independent, they do not typically come from among an administration’s pool of political appointees. Here, should President Trump decide to assert executive privilege over documents relevant to Miller’s tenure in the White House, the Senate will be hamstrung in its ability to assess his independence.
Senators should also press Miller and the other IG nominees about access to documents and whether they will communicate directly with Congress in cases of gross misconduct or administration obstruction. In a statement released following his signing of the coronavirus stimulus bill, President Trump questioned the constitutionality of the law’s requirement that the new IG for the pandemic recovery — Miller, if confirmed — “notify Congress immediately if the administration ‘unreasonably’ withholds information requested by investigators.” The statement in effect, “instruct[s] the rest of the executive branch to interpret the laws in the same way.” Although Congress has no opportunity to veto the President’s signing statement, Senators will get to question his IG nominees about their commitment to communicating with Congress, creating a perfect opportunity to demonstrate the nominee’s independence. “One former senior Senate aide curiously lauded Miller, stating that he, “combines loyalty to the administration with the independence you need in an IG.” The Senate must be dogged in exploring those dangerously conflicting characterizations.
Independence will also be relevant to the Senate’s consideration of Jason Abend to be DoD IG, and Katherine Crytzer to lead TVA OIG. DoD OIG has been without permanent leadership since 2016 and the TVA OIG post has been vacant since September 2017. Both Abend and Crytzer appear to have extensive investigative experience. But Senators will undoubtedly have questions about their independence from the Trump administration, since they are already political appointees within it. This is not a new issue. In 2018, a brief political firestorm ignited when Housing Secretary Ben Carson announced that Suzanne Israel Tufts, a Trump political appointee, was leaving the agency to become the Acting IG at the Department of the Interior. Within days of the announcement, members of Congress raised concerns, especially since political appointees are “an unusual choice for a role that is traditionally nonpartisan.” As former DOJ IG Michael Bromwich noted regarding the news, “Politicizing the oversight function is dangerous.” Carson’s announcement was quickly disavowed, but President Trump’s nominations of Abend and Crytzer would surely invite similar questions.
Qualifications under the IG Act do not appear to be a problem for some of the President’s recent IG picks, but they certainly could be for Andrew De Mello, Trump’s choice to lead ED OIG. De Mello, a 2010 law school graduate, currently serves as a DOJ trial attorney and has been on detail to the Department of Homeland Security OIG since October 2019. ED OIG has more than 200 lawyers and other staff across 16 offices and oversees an agency with a roughly $70 billion budget. While De Mello has some relevant experience, he has been licensed to practice law for less than ten years and has spent roughly six months in the IG community. Meanwhile, Sandra Bruce, ED’s Deputy IG, has more than 30 years of experience managing complex audits and investigations including over a decade in the IG community. ED OIG plays a critical role in the government’s coronavirus response, including serving on the congressionally mandated Pandemic Response Accountability Committee. Following the retirement of former IG Kathy Tighe, the Trump Administration was forced to reverse itself when it tried to install an agency employee as Acting IG, disrupting OIG’s normal succession process. Given ED’s role in the coronavirus response, Education Secretary Betsy DeVos’s numerous ethics issues, and the prior public scrutiny regarding this vacancy, De Mello should expect a thorough review of his credentials to lead ED OIG including whether he has gained any experience managing attorneys, staff, offices, or budgets during his brief legal career.
The one outlier in the group appears to be Peter Thomson, who Trump intends to nominate as CIA IG. Thomson is a white collar defense attorney at Stone Pigman Walther Wittmann, LLC. Certainly Senators should examine whether any of Thomson’s clients are or have been investigated by the IG community or have contracts with the CIA. Thomson is an experienced litigator and former federal prosecutor who served on special assignment with the National Security Agency. Another Stone Pigman alum was nominated by President Trump to the federal bench, but there do not appear to be any other close ties between Trump and Thomson or his firm. Despite that fact, Senators would be wise to closely examine Thomson’s record and question him about IG independence. Last month, reports surfaced that the White House had created a new questionnaire to vet potential political appointees by testing their loyalty to President Trump. Given the President’s recent firing of Michael Atkinson and his potential attack on IGs, Thomson and other IG nominees should be asked whether they received questions directed at loyalty and, if so, how they responded.
President Trump repeatedly demonstrates a hostility to independent oversight that has manifested in many troubling actions including a long list of IG vacancies and last week’s removal of the ICIG, Michael Atkinson. While the President’s decision to nominate five new IGs should be welcome news, Trump’s prior conduct and push for loyalty from his appointees demand that the Senate take its advice and consent function seriously to ensure that only qualified and independent IG candidates are confirmed.