How firing inspector general Atkinson impacts the government’s ability to fight coronavirus
On Friday night, April 3, 2020, President Donald Trump sent a letter to Congress terminating the inspector general for the intelligence community, Michael Atkinson. Although this news story is primarily covered as one related to the president’s grudge emanating from impeachment, this termination will have a far greater impact. The integrity of the government’ oversight and accountability programs are called into question, as well as the ability of the government to respond honestly, ethically and effectively to the coronavirus pandemic.
Inspectors general oversee every department of the United States, not just the intelligence community. This includes every federal agency that is currently part of President Trump’s Coronavirus Task Force, including the Department of Health and Human Services, the Food and Drug Administration, the Centers for Disease Control, the Public Health Service, Centers for Medicaid and Medicare Services, Department of Veterans Affairs, and the Department of Homeland Security. IGs also oversee agencies responsibility for spending the trillions of taxpayer dollars being spent on the economic fallout triggered by the coronavirus pandemic, such as the Department of Treasury. Pursuant to a directive from the Department of Health and Human Services, the HHS IG has exclusive authority to investigate and make recommendations concerning whistleblower cases within the Public Health Service’s Commissioned Corp, among the most vital group of doctors and health care professionals directly responsible for protecting public health.
The inspector general’s jurisdiction covers far more than simply investigating corruption, fraud and abuse. It also covers the federal actions that could harm the public health and safety. The Inspector General Act provides explicit authority for the IGs to accept employee complaints regarding specific dangers to the “public health and safety.” The IG procedures for accepting and investigating public health and safety complaints are the same as the rules that applied to the inspector general for the intelligence community that was managed by now-fired inspector Atkinson. Inspector Atkinson, (as well as any other IG who receives a whistleblower complaint), was required by law to maintain the confidentiality of the whistleblower, even if the president calls the whistleblower “fake” and states on national Television that “someone ought to sue his ass off.”
The responsibility of the IGs is not limited to protecting whistleblowers. Like the inspector general for the intelligence community, all other IGs are also required inform Congress of all “serious problems” they uncover, even if the president believes the source of the information came from a “fake whistleblower.” On this point the law is clear: IG must keep “Congress fully and currently informed . . . concerning fraud and other serious problems, abuses, and deficiencies relating to the administration of programs and operations administered or financed by such establishment [i.e. all Executive Branch agencies], to recommend corrective action concerning such problems, abuses, and deficiencies, and to report on the progress made in implementing such corrective action.”
Thus, every inspector general with oversight responsibility over the numerous departments and agencies directly involved in fighting the coronavirus pandemic and overseeing trillions of dollars spent on the economic fallout caused by COVID-19, will face the identical dilemma faced by the now-terminated inspector general for the intelligence community. They are all threatened by potential attacks from the president of the United States if they open an investigation into misconduct committed by any member of the Coronavirus Task Force. They all know that if they keep the identity of a whistleblower confidential, their integrity may be undermined on Twitter. They all know if they follow the law and make a disclosure to Congress based on a confidential whistleblower disclosures that are embarrassing to the president, they could be disgraced in the pro-Trump media and eventually fired by the president.
These concerns are not merely hypothetical. The inspector general of the Navy has jurisdiction over all potential retaliatory actions within the Navy. Any sailor who witnesses coronavirus contamination on a ship, or a COVID-19 outbreak that is making sailors sick, can file a confidential complaint with the inspector general for the Navy. That inspector general also has exclusive jurisdiction to investigate any Navy whistleblower retaliation case, including retaliation cases predicated on disclosures of health and safety violations.
The removal of Cpt. Brett Crozier as the commander of the USS Theodore Roosevelt brings these issues into focus. It is the responsibility of the inspector general to investigate whether or not Crozier’s removal was in illegal retaliation for the memorandum he wrote warning that sailors were at risk for dying due to the COVID-19 contamination on his ship. Now that the president has publicly endorsed the removal of Crozier, will the inspector general for the Navy be willing to face the same attacks as those faced by Inspector Atkinson? Or, will the Inspector for the Navy be under tremendous pressure to back down and give President Trump and his appointees a pass? Will the IG investigate the facts alleged in Crozier’s memorandum, and even open an investigation into the Navy’s response to COVID-19 contamination on ships and submarines?
Beyond the negative impact on the conduct of inspectors general, will witnesses within the Department of the Navy be willing to step forward with evidence about Crozier’s removal or the truth about COVID-19 health hazards facing sailors on ships and submarines? Will witnesses fear that IGs, concerned over their jobs and reputations, will yield to the massive White House pressure to reveal their identities as whistleblowers? Will they fear that they will be targeted by the president on Twitter, or that the president will publicly call for them to have their “ass” sued for filing a complaint?
The president’s treatment of inspector Atkinson will reverberate throughout the entire inspector general community, regardless of whether current IGs assert that they will continue to follow the law. Every inspector general is in the position of inspector Atkinson. Every inspector general risks public attacks by the president and ultimate termination simply for following the requirements of the Inspector General Act. This will have an impact on investigations, especially those that implicate President Trump, the White House, or his appointees.
The Inspectors General Act is the central piece of federal legislation ensuring oversight and accountability in the United States government. Inspectors general are the front-line police with the responsibility to ensure the integrity of the trillions of dollars being spent to address the economic fallout from the coronavirus pandemic. They have jurisdiction to investigate threats to the public health and safety and protect whistleblowers.
Because inspectors general (“IGs”) are Congress’s eyes and ears on the operations of government, unlike the removal of other presidential appointees (such as the director of the FBI), the Inspector General Act places an important limit on the power of the president to fire IGs. The president must give Congress 30-day’s notice of his intent to terminate any IG. This rule gives Congress time to investigate such firings, and ensure the continued integrity of the inspector general process. Congress can use its numerous powers over budget and appointments to influence the outcome of any IG-termination, if they so choose.
The question raised by the termination of Atkinson is not whether President Trump had the power to initiate the 30-day removal process and fire the inspector. His animus toward the Atkinson and the whistleblower he protected is well documented. The real question is whether Congress will use the mandatory 30-day review process to defend the inspector general program. At issue is the ability of Congress and the American people to be fully informed of abuses within their government. It is clear that President Trump wants to shut down the IG process whenever investigations may prove embarrassing to him or his appointees. It is not clear what Congress is willing to do about this.
Stephen M. Kohn is partner in the whistleblower rights law firm of Kohn, Kohn and Colapinto, LLP. Kohn also serves as the chairman of the Board of Directors of the National Whistleblower Center.
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