If I had a dollar for every time a government employee told me, “this OIG investigation is political!”—well, I’d be retired by now.
I get it. The Inspector General for many agencies is appointed by the President. There’s a natural instinct to view that person as sharing the politics of the person in the Oval Office. If you have conservative political views and the IG was appointed by a Democratic president, then you may think the investigation started because of your political views. Hence the accusation that it is “political.”
There is also another kind of “political,” which is more along the lines of “office politics.” That’s not Democrat-Republican or left-right. It’s the often-very-real sense that you are either on the inside or the outside of office leadership.
The truth is, most OIG investigations are not political in either sense of the word. The OIG is looking into whether you billed the government for improper travel expenses? Not political. The OIG is checking your time and attendance records to see if you were working during COVID? Not political. The OIG is looking into whether your company overbilled labor expenses on a government contract? Not political either.
It’s rare that OIG investigations are political. I usually spend some time explaining to my clients that, no, they are under investigation not because of their politics but because of what they did (or what the OIG thinks they did).
To be fair, I have represented SES and political appointees who do seem to have been targeted unfairly —whether for their political leanings or because of office politics. So I don’t discount a potential client telling me that an OIG investigation is “political,” because I’ve seen it happen.
Old Days > Today
Before the last few years, I’d guess that most people had no idea what an OIG was unless they worked for the federal government. Sure, OIGs look into “waste, fraud, and abuse,. Maybe fraud can be sexy but OIG investigations usually aren’t breaking news.
The last four years, however, have changed all that. Former President Trump used IGs as a personal political tool. He removed inspectors general when they investigated his political allies or refused to do his political bidding. He had them shut down valid investigations into his political appointees. It was a mess. This is not how the system is supposed to work.
After President Biden was elected, I was hoping that people would forget what an OIG even was.
That . . . isn’t going to happen.
DOJ OIG Is Now Breaking News (sigh)
The Department of Justice yesterday issued a statement that it was opening an investigation into whether any DOJ employees tried to alter the outcome of the 2020 election. This statement follows a shocking story in the New York Times that the head of DOJ’s Civil Division tried to oust the acting Attorney General so that DOJ could put its power behind President Trump’s effort to change the election’s outcome.
[Also, if you are under OIG investigation, give us a call. We can help.]
I know a lot of good people who work at DOJ—my husband included. It’s truly unbelievable to think that DOJ lawyers tried to use the Department’s power to change a fair election.
These are allegations unquestionably worthy of an OIG investigation.
Here’s DOJ OIG’s official statement:
The DOJ Office of the Inspector General (OIG) is initiating an investigation into whether any former or current DOJ official engaged in an improper attempt to have DOJ seek to alter the outcome of the 2020 Presidential Election. The investigation will encompass all relevant allegations that may arise that are within the scope of the OIG’s jurisdiction. The OIG has jurisdiction to investigate allegations concerning the conduct of former and current DOJ employees. The OIG’s jurisdiction does not extend to allegations against other government officials.
The OIG is making this statement, consistent with DOJ policy, to reassure the public that an appropriate agency is investigating the allegations. Consistent with OIG policy, we will not comment further on the investigation until it is completed. When our investigation is concluded, we will proceed with our usual process for releasing our findings publicly in accordance with relevant laws, and DOJ and OIG policies.
The statement explains that it is “consistent with DOJ policy” to announce an OIG investigation. That’s not exactly the case. Sure, DOJ itself announces criminal investigations into major crimes. But OIGs generally do not announce the start of an investigation. They may issue a press release when an investigation or an audit ends, or when the subject of an OIG investigation is arrested.
Here’s the Department of Energy’s “recent news” page:
Here’s the one from the Department of Health and Human Services (which investigates, among other things, Medicare fraud):
<YAWN> See? OIGs issue relatively boring news releases about completed reports and summaries of findings.
The DOJ OIG’s statement is out of the ordinary. And this isn’t the first time. DOJ OIG announced on January 15 that it was also looking into the attack on the Capitol:
The DOJ Office of the Inspector General (OIG) is initiating a review to examine the role and activity of DOJ and its components in preparing for and responding to the events at the U.S. Capitol on January 6, 2021. . . . The DOJ OIG review will include examining information relevant to the January 6 events that was available to DOJ and its components in advance of January 6; the extent to which such information was shared by DOJ and its components with the U.S. Capitol Police and other federal, state, and local agencies; and the role of DOJ personnel in responding to the events at the U.S. Capitol on January 6. The DOJ OIG also will assess whether there are any weaknesses in DOJ protocols, policies, or procedures that adversely affected the ability of DOJ or its components to prepare effectively for and respond to the events at the U.S. Capitol on January 6. If circumstances warrant, the DOJ OIG will consider examining other issues that may arise during the review.
Are These Investigations “Political”?
If I were to represent someone in these investigations, I have no doubt that they would think the investigations were political.
These investigations are “political” in that that are investigating conduct that had a clear political undercurrent. They will judge whether people within DOJ ignored red flags with respect to the Capitol attack or did not respond appropriately once it occurred. They will investigate whether a few DOJ lawyers (heck, maybe just one?) tried to oust the Attorney General to overturn the election results.
I think it is fine for DOJ OIG to look into these matters. They are both within its jurisdictional mandate. They are important and troubling events. What bothers me are the press releases. DOJ OIG doesn’t need to advertise its investigations. It doesn’t need to “reassure” the public that it is doing its job.
Sure, the DOJ Inspector General could answer a question from a reporter that his office is looking into both events. Issuing a press release makes the investigations look political, even if they are not. How will DOJ OIG look if it conducts the investigation and finds . . . nothing? Will it feel pressure to find some wrongdoing somewhere to justify the investigative resources that will be spent on these matters?
If DOJ OIG is viewed as conducting “political” investigations, then it loses credibility. It’s no longer the “statutorily created independent entity whose mission is to promote integrity, efficiency, and accountability within the Department of Justice,” as it says on its website.
Turning OIGs into political tools is not a good thing.