Chuck Grassley

United States Senator from Iowa

Instagram

Flickr

Twitter

Facebook

Grassley Statement for Senate Record Regarding White House Compliance with IG Protection Law

Jun 18, 2020
Statement of Senator Charles E. Grassley
Before the United States Senate
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.
-30-