Some of our clients who are under investigation by an Office of Inspector General (OIG) believe that the investigation is “political.” They are often convinced that they are under investigation because of their political views or because they were appointed by someone in a different political party than the one in power. And I confess, I’ve seen a few OIG investigations that have so little merit that I understand my clients’ point of view.
The incoming administration may elevate this concern from conspiracy theory to fact.
After all, President-Elect Donald Trump has made inflammatory public statements suggesting that he may investigate and target his political enemies, calling them “the enemy within.” He has proposed stripping many federal employees of their civil service protections by turning them into political appointees, who could then presumably be fired.
President-Elect Trump could use the nearly unchecked power of federal agency Inspectors General to investigate and ruin the careers of countless federal employees and put disfavored federal contractors out of business.
Under the Inspector General Act of 1978, the purpose of an OIG is to “conduct . . . investigations relating to the programs and operations” of federal agencies. Their investigative mandate is described as looking into “waste, fraud, and abuse.” Those are broad terms with no binding legal definition. Pretty much any type of wrongdoing could fall within an OIG’s mandate.
This post will explain how the new administration could use OIGs to target federal employees and federal contractors, why it would be difficult to fight this effort, and one possible (surprising) bulwark against such an effort.
A Roadmap to Political OIG Investigations Against Federal Employees
IGs are not supposed to be partisan. The Presidential Transition Handbook: The Role of Inspectors General and the Transition to a New Administration from November 2024 says that “[r]eflecting their independent, nonpartisan role, unlike other political appointees, IGs typically remain in office when Presidential Administrations change. This practice has been followed for more than 40 years.”
Mr. Trump is not known for his adherence to tradition. So, here’s how he could use the IGs to conduct political investigations intended to harm his political enemies or demoralize federal employees:
First, the President-Elect can remove existing IGs. For the ones that he cannot remove (certain designated federal agencies), the heads of those agencies can remove the IG. Thus, for most agencies, either Trump or his political appointees can remove the IG. There are currently 73 federal IGs.
There is no limitation on this removal authority. The removal need not be “for cause.” The only requirement is that both houses of Congress must be notified when an IG is removed by either the President or an agency head.
Second, Trump can then nominate new, handpicked IGs for Cabinet-level departments and other major agencies. They will need Senate confirmation but unless they are truly unqualified (and perhaps even then), the GOP-controlled Senate will confirm them. For other designated federal agencies, the agency head can pick the new IG.
Third, once the new IG is in place, the IG can investigate any agency employee. (To be fair, this is true today, too.) There is zero transparency into why an OIG chooses to investigate someone, especially since FOIA requests are generally rejected under the law enforcement exemption. OIGs do have to send a semi-annual report to Congress, and publish the report on their websites, but those reports have only summary information about the source of an investigation.
An OIG can also investigate a former employee of an agency. So, this power could be turned against political appointees or career employees who leave the agency.
Fourth, the OIG can publish reports of its investigations into these federal employees that describe allegations and evidence in as much detail as the OIG wants. Right now, for non-SES employees, these reports usually do not name the employee, but there is no statutory restriction against doing so. A new IG could change that policy in a heartbeat. Even if the allegations are not substantiated, a report that describes the allegations against a named subject can do irreparable harm to the employee and hurt her future employment opportunities down the road.
The OIG can also refer the matter to DOJ for criminal prosecution.
Finally, political appointees in an agency—or fearful career employees—could take adverse employment determinations about the investigation’s subject, including dismissal.
A Roadmap to Political OIG Investigations Against Federal Contractors
The same roadmap exists for federal contractors, even ones that are performing under massive contracts. Let’s say a federal contractor’s CEO makes comments against the current administration’s policies. The OIG could open an investigation into, say, whether the contractor overbilled the federal government on its last contract.
If the allegations are substantiated, then the OIG may refer the matter to the agency’s suspension and debarment office for administrative proceedings. Suspension may stop payments under the contract. Debarment prevents the company from winning future contracts. This could destroy small businesses and cause a massive drop in shareholder value for large companies that rely on federal contracts.
Or the OIG could refer the matter to the Department of Justice for criminal investigation and potential prosecution.
Aren’t There Checks on OIG Power?
Hahahaha.
No. Not really.
I’m being a little facetious but there are not many structural limits on an OIG’s authority to conduct investigations, publish the results , and make referrals to DOJ or the agency’s suspension and debarment office.
Keep in mind that OIGs act as the investigator, judge, and jury in these investigations. They investigate the wrongdoing and decide whether the allegations are substantiated (proven) or not substantiated (not proven). There is no neutral arbitrator to decide these matters beyond the investigating agents and OIG officials.
Also, Congress can hold oversight hearings if it disagrees with what an IG is doing, but Congress cannot remove an IG or stop an investigation.
There are a few limitations on an OIG’s authority:
Cannot impose negative outcomes
- Discipline on federal employees. An OIG cannot directly impose discipline on federal employees—that is up to the employee’s supervisor. Agency officials who receive reports of substantiated allegations could choose not to take any disciplinary action against employees or contractors. But these employes will have a reporting line to a political appointee, who may have the final say.
- Suspension/debarment of federal contractors. An OIG cannot suspend or debar a contractor—that is up to the suspension and debarment office. But again, those decisions are made within a federal agency headed by a political appointee.
- Criminal charges. An OIG cannot bring criminal charges—that is up to DOJ. DOJ is headed by a political appointee.
Supposed to follow OIG guidelines
There are certain guidelines for OIG investigations promulgated by the Council of Inspectors General on Integrity and Efficiency (CIGIE, pronounced “siggy”). CIGIE is made up of IGs from various federal agencies. CIGIE publishes the Quality Standards for Investigation (QSI), which describe how investigations should be conducted. It also published the Silver Book, or the Quality Standards for Federal Investigations.
Both the QSI and Silver Book require “independent” investigations, but there is no mechanism to enforce this requirement in court.
Could be investigated for “political” investigations
CIGIE has an Integrity Committee that investigates IGs and certain designated senior OIG officials for wrongdoing. In theory, the Integrity Committee could investigate an IG who engaged in biased political investigations. But CIGIE is itself made up of IGs from agencies and, again, there is no court enforcement of this process and no private right of action to permit an aggrieved employee or contractor from demanding a CIGIE investigation.
Could Protection for Government Employees and Contractors Spring from a Surprising Source?
OIG investigations differ from many criminal investigations in that the agents take the lead, rather than a prosecutor or other lawyer. In other words, OIG agents often run the show. This can be frustrating when I want to push back on what an agent is doing but it may turn out to be one protection against OIG investigations turning into political witch hunts.
You see, many OIG agents are former FBI or state law enforcement officers. And while I’ve seen significant variation in their experience and approach, and while I’ve frequently disagreed with their conclusions, they largely act in good faith and are trying to reach a fair conclusion based on the evidence.
OIGs are supposed to be independent. Under the QSI, the investigative organization “must be free, both in fact and appearance, from impairments to independence; must be organizationally independent; and must maintain an independent attitude.” And “investigators [have] the responsibility for maintaining independence, so that decisions used in obtaining evidence, conducting interviews, and making recommendations will be impartial and will be viewed as impartial by knowledgeable third parties.”
OIG agents may not want to be used as political pawns. And they could protect federal employees from political investigations by conducting an independent inquiry into the allegations, evaluating the evidence gathered fairly, and refusing to be pressured into reaching conclusions different than what the evidence supports.
The rubber will hit the road when an OIG agent is directed by the IG to reach a conclusion that is unsupported by the evidence or is plainly political. Will an agent refuse to do so? Will other career OIG employees stand firm?
The jury is out on that one. But the rank-and-file agents themselves may be the last protection for government employees.