US President Donald Trump. Picture: REUTERS
US President Donald Trump. Picture: REUTERS

In the shadow of the coronavirus pandemic, President Donald Trump is taking ever bolder steps to gut the government structures designed to ensure the rule of law in the US.

In the past week alone, he’s fired two prominent inspectors-general: the intelligence community inspector-general (IG) who received the whistle-blower complaint that sparked Trump’s impeachment; and the defence department inspector-general, who had just been named by a group of other inspectors-general to oversee the coronavirus bailout effort.

Technically, firing IGs is within the president’s constitutional ambit. They’re executive officials appointed by the president and confirmed by the Senate. Yet these firings fundamentally undercut the constitutional idea that the president and his appointees are governed by the law, not above it.

The purpose of the 70-odd federal IGs is to provide rigorous scrutiny and oversight for federal agencies. That’s why the IGs are typically embedded in the agencies they supervise.

It’s also why more than two dozen of the most important IGs, such as those for defence and the intelligence community, aren’t hired and fired by the heads of the departments or agencies they oversee. Direct presidential appointment is supposed to make them more independent of the agency hierarchy than they otherwise would be.

Put differently, the direct presidential appointment of some IGs is designed precisely to give them the independence they need to do their jobs.

Trump’s politically motivated firing of these IGs neatly turns that independence on its head. Instead of being free to act according to the law and to follow evidence of wrongdoing wherever it leads, the IGs are now being given an incentive to show loyalty to the president. And showing such loyalty would almost certainly involve suppressing, rather than pursuing, evidence of wrongdoing within the presidential administration.

A commitment to clean and independent oversight isn’t an inevitable feature of American government ... The IG offices exist to execute this vision

The modern structure of IGs isn’t an ancient feature of US democracy. It dates back to the Inspector General Act passed in 1978. That timing is not a coincidence. The post-Watergate era saw a major, systematic effort to establish institutions that would fight corruption throughout the federal government.

The creation of the IGs was born of the painful realisation that US government officials at the highest levels could be corrupt. Recall that not only was Richard Nixon involved in the Watergate cover-up; his vice-president, Spiro Agnew, was forced to resign after being accused of taking cash payoffs. (He subsequently pleaded no contest to one count of tax evasion.)

The core idea behind the creation of the IGs was that independent, non-partisan investigation of wrongdoing must become a deeply held cultural norm within the government. The same idea was at play in the post-Watergate period as the department of justice and the FBI began the process of remaking themselves as entities committed to non-partisan investigation and prosecution of crime.

If Watergate made it clear just how much reform the department of hustice needed, the death of J Edgar Hoover in 1972 opened the door for reform at the FBI.

The key point here is that a commitment to clean and independent oversight isn’t an inevitable feature of American government. That value needs to be constructed painstakingly over time. The IG offices exist to execute this vision. And it’s a vision that is a cornerstone of the modern idea of the rule of law.

Vendettas everywhere

Trump’s firing of the IGs is repugnant to the rule of law because it signals his post-impeachment belief that he and members of his administration cannot justifiably be overseen. He seems to see these IGs as Obama administration holdovers bent on some vendetta against him. This radically politicised and partisan conception undercuts the basic idea on which the IG offices are based: that independent-minded investigators and prosecutors are valuable actors in preserving the rule of law.

It took decades to build the norm of independence in government oversight actors, investigators and prosecutors. Such norms can be broken much more quickly than they can be built. In the aftermath of these Trump firings, future IGs — not to mention those currently in office — will understand the message that to keep their jobs they must be administration loyalists.

In a world where IGs are partisan, not genuinely independent, it’s arguably worse to have IGs in place than to have no IGs at all. Stripped of their independence, IGs can become dangerously effective enforcers of an administration’s orthodoxy on the agencies they oversee. IGs have significant power to initiate investigations that can have criminal consequences. If they do so on a partisan basis, they pose a formidable threat to all non-partisan actors in the government who might fall afoul of an administration’s partisan orthodoxy.

In the wake of Trump’s impeachment and the Senate’s decision not to remove him from office, it can be hard to know when to get upset by Trump’s manifestly partisan interventions in the ordinary running of government. The Covid-19 pandemic makes this worry greater still.

The answer is that critics of the administration must focus on those instances where Trump is not simply serving his own interests, but is actively undercutting the capacity of the government to function in the long run according to rule-of-law values. The IG firings fit the bill. It’s appropriate to meet them with the shock and condemnation they deserve.

• Feldman is a Bloomberg Opinion columnist and host of the podcast Deep Background. He is a professor of law at Harvard University and was a clerk to US supreme court justice David Souter. His books include The Three Lives of James Madison: Genius, Partisan, President. This column does not necessarily reflect the opinion of Bloomberg LP and its owners.

Bloomberg

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