Lawfare Daily: What Does the Inspector General Do?

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[Intro]

Glenn Fine: So there's an interesting dynamic between the agency and Congress and the IG is reporting to both, and some people have called it akin to straddling a barbed wire fence. Sometimes it feels that way, but ultimately you have to be straightforward and credible with both of them to be effective.

Jack Goldsmith: It's the Lawfare Podcast. I'm Jack Goldsmith of Harvard Law School with Glenn Fine, the former inspector general of the Department of Justice and the former acting inspector general of the Department of Defense.

Glenn Fine: IGs are not foolproof and it's not a panacea. It depends on the right people being in the office who have the backbone to stand up and to do the important work that needs to be done. It also relies on the agency head taking seriously what the IG does. So if the IG makes a recommendation, the agency head ignores it or doesn't cooperate, that's a problem.

Jack Goldsmith: Today we're talking about Glenn's new book, “Inspectors General and the Battle for Honest and Accountable Government.”

[Main Podcast]

Glenn, you were an inspector general for 11 years in the Justice Department and then for about five years, I think you were the acting inspector general of the Department of Defense. So you have enormous experience with the Office of the inspector general. Can we just start off with the basics? What is an inspector general?

Glenn Fine: Certainly. And thanks for having me on and talking about the role of inspectors general. So there is an inspector general in each federal agency. Their mission is to detect and deter waste, fraud, and abuse in the agency, and promote the economy, efficiency, effectiveness, and integrity of the agency. They were originally established by the Inspector General Act of 1978 and expanded since then. Half of the IGs are appointed by the president, confirmed by the Senate. The other half are agency head-appointed.

They're independent and objective units who keep both the head of the agency and Congress fully and currently informed of problems in the agency. As a result, they have access to all agency documents and individuals. They can audit, investigate, and evaluate any aspect of the agency. They're supposed to be selected without regard to political affiliation. They don't have a term of office, which is why they normally remain when the administrations change.

And so they are, their role is to help improve the agency, to hold agency officials accountable, to return money to the Treasury. And they do an awful lot of that. And they provide transparency in government so our citizens know how our government operates.

Jack Goldsmith: So you said that inspectors general are independent and objective. Can you explain what you mean by that?

Glenn Fine: Well, they, they're under the general supervision of the agency head, but that's nominal supervision. So it's the inspector general who decides what to audit, what to evaluate, what to investigate, and how to write the reports, and who to hire within the office. So they, if they are required by statute of Congress to do a certain audit or evaluation they will do that.

We will also often ask the agency leaders what they think would be the best audit or evaluation that could help improve agency operations. And often we get a few, but not too many because it's hard for an agency leader to ask for an open audit of their work. But ultimately it's the IG who decides how to audit, how to evaluate, how to investigate. And that's why they're independent and that's why they're credible, because of that independence.

Jack Goldsmith: And so these are, in my experience, very effective accountability beacons inside the executive branch, which is kind of a remarkable thing. And also, inspectors general don't report to Congress, but Congress is very interested in what inspectors generals do.

Let's talk a little bit about the history, and then we'll get into some of, you know, some of the things you did in your offices. You said that the Inspector General Act of 1978 established them. And, but as I recall, that was only for a handful of departments and now they spread to just about everywhere in the executive branch, except the White House, is that right?

Glenn Fine: That is correct. And they even have a history even beyond civilian IGs under the Inspector General Act. In fact, the military IGs have been around for a long time, and if I go into the history of that.

Jack Goldsmith: Yeah, why don't you, why don't you talk about that? They go back to the beginning, don't they?

Glenn Fine: They do go back to the beginning, and the inspector general’s instrumental to the birth of our country. The first inspectors general were by King Louis XIV in France, who used inspectors general to inspect his cavalry and improve the fighting ability of his cavalry. The Prussians and the British also had an inspector general. Then came the Revolutionary War, and Washington's army was on the verge of collapse at Valley Forge in 1777. And Benjamin Franklin met a retired Prussian captain in Paris and recommended him to be the inspector general of the Continental Army.

However, he was only a captain, and Franklin didn't think that would be sufficient to induce the Congress in Washington to accept him, so he inflated his resume and said he was a lieutenant general. And his name was Baron von Steuben. Baron von Steuben went along with the inflated resume, came to the United States, was hired by the Continental Congress to be the inspector general of the Continental Army, went to Valley Forge.

Washington was skeptical at first, was a little hesitant to have Baron von Steuben, and von Steuben was appalled at the conditions of the troops. They were abysmal. They were in tatters. They were disorganized. And through his work and the work of insistence, assistant inspectors, he drilled the troops, he inspected the troops. He made them into an effective fighting force, and they left Valley Forge much more organized, with better morale.

In fact, many people said that he was indispensable to the success of the Continental Army, second only to Washington. And in compensation for his services, he was given citizenship in the United States and also an estate in New York. He was with Washington until the very end, until Yorktown.

And so since then, the army, the, had an inspector general office. In fact, Alexander Hamilton served as an inspector general of the army after he stepped down from the Treasury. The Navy had one when it was formed, the Air Force, the Marines. Those are military inspectors general, which are different than civilian inspectors general.

Military inspectors general are the, basically the eyes and ears of the commander. They report directly to the commander. They're under the commander's direct authority. Civilian inspectors general are different, and have more independence than military inspectors general. So I, if you'd like, I'd go into the evolution of the IGs in the civilian side as well.

Jack Goldsmith: Yeah, do that please.

Glenn Fine: So as I mentioned in 1978, the Inspector General Act was passed. It was a part of a series of post-Watergate good government reforms, including civil service reform, financial disclosure reform, foreign intelligence surveillance act reform. And the Congress wanted an inspector general to audit, evaluate, and inspect the executive branch and report problems.

The administration, Carter's administration, opposed the concept of an inspector general. Said it wasn't needed. They already had what they call the General Accounting Office, now the Government Accountability Office, that did audits and evaluations of executive agencies. And also they thought that it would second guess and hamper management of the agency and did not like the fact that the inspector general was reporting to Congress as well, the results of its reviews.

In the end, however, President Carter and his administration signed the bill because they had run on a good government pledge and there were 12 inspectors general in that first Inspector General Act, not in all agencies. For example, the Department of Justice opposed an inspector general in the Department of Justice, saying we didn't need one. We were an agency of lawyers who didn't need that kind of oversight. That argument didn't age that well. FBI opposed one, the Department of Defense opposed one, the Treasury opposed one.

So for a while, there was only 12. But through amendments to the IG Act over the years, eventually that opposition was overcome, and now there are IGs in virtually every federal agency, 74 in total, that does very important work in holding those agencies accountable.

In fact, in 1978, was when the IG Act was passed, in 2018, the 40th anniversary of the IG Act, there was a celebration of the IG Act at the Carter Center in Atlanta. And President Jimmy Carter said at that celebration that opposing the creation of IGs was one of the biggest mistakes he made as the president, and that the IGs have shown their value and their worth by returning money to the treasury and making government more effective.

Jack Goldsmith: Yeah, and even Bill Barr, who was an opponent of inspectors general during his first term as attorney general, during his second time as attorney general, was, to my surprise, singing their praises. So there's, the general story has been one of limited inspector general throughout the executive branch and serious constitutional concerns about having this entity inside the executive branch with independence from agency heads, into sometimes grudging, but nonetheless, acceptance, of inspectors general throughout the executive branch. And it seems to me that the constitutional concerns have diminished. Is that fair?

Glenn Fine: I think that's right. In 45 years, it has not been raised, it hasn't been challenged. The executive branch does have prerogatives. The IG is within the executive branch. The executive branch can assert privileges to prevent the release of information. In certain agencies, including the Department of Justice, it can essentially block the release of information if it would harm national security or ongoing civil or criminal cases.

I think you're right that the acknowledgment of the value of IGs and the importance of IGs has increased over time and people have accepted that they have helped improve the government.

Jack Goldsmith: And before we turn to your time as inspector general, just one more background question or preliminary question: how about removal? What are the terms under which the IGs can be removed?

Glenn Fine: The president can remove IGs and the head of the agency can remove IGs. Before 2022, the president just had to give the reasons why and wait 30 days before the removal took effect. But the reasons why didn't have to be specific. In the past, several presidents have removed a few IGs, citing they didn't have confidence in the IG, or they didn't have the fullest confidence in the IG.

Now, as a result of bipartisan legislation in 2022, in the National Defense Authorization Act, the president, when removing an IG, instead of just giving the reasons, which typically were, as I mentioned, loss of confidence, now has to give substantive rationale, including detailed and case specific reasons, and wait 30 days unless there's very narrow circumstances where the IG's presence would remain a danger to the workplace.

It's still a process. It doesn't prevent the president from removing IGs, but just to give the reasons why. There's also additional provisions on who can be an acting IG, which we can get into, but still now the president can remove the IG for presidentially appointed IGs, and the agency head can do the same thing as long as he or she gives the reasons why.

Jack Goldsmith: Okay. I want to come back and return to that issue, but let's first talk about your stint, stints as an inspector general. Let's start with the Justice Department. How did you come to get that job? And just give us an overview of the highlights of your term.

Glenn Fine: Sure. So I was a lawyer, graduated from law school and got my first job as an assistant United States attorney in Washington D.C., prosecuted crime in the district. Terrific job for a junior lawyer. Throws you into court right away, where my law school colleagues would be doing discovery or at a law firm without as much responsibility as early on.

And I'll never forget, actually, the first time I was sent to court, which within a week of when I became an assistant United States attorney in Washington, and it was for a minor sentencing for a defendant. And the defense counsel argued why the defendant should not be incarcerated. And then the judge looked over in my direction and said, and what's the position of the United States of America?

And at that point I looked over my shoulder behind me and then over my other shoulder, looking behind me, and then recognizing that in this courtroom, in that courtroom, I represented the interests of the United States, and it was a privilege and a responsibility I never took for granted.

I did that for three and a half years, did lots of jury trials, over 30 jury trials, got a lot of time in court thinking on my feet, really enjoyed it. Then decided to go to a law firm and did that for a few years, but did not have the same challenge and satisfaction of that time in government.

So I wanted to get back into government and I was introduced to the inspector general of the Department of Justice at the time, guy by the name of Michael Bromwich. At the time, I had no idea what inspector general was. Inspector generals have sometimes been called some of the most important public officials you've never heard of. And I had never heard of them. I mean, what does it even call to mind when you think about it? For some people, it calls to mind Inspector Javert from Les Miserables, Inspector Clouseau from the Pink Panther movie. I don't know, even Inspector Gadget.

So I talked to him. I learned about the role. I learned about the exciting things that the Department of Justice inspector general was doing under his direction, and I signed up. I became his special counsel in 1995. Then I became the head of the Special Investigations and Review Unit within the Department of Justice Inspector General's Office. And then in 2000, when he stepped down, I was nominated by the president and confirmed, by President Clinton, and confirmed by the Senate, to be his replacement as the inspector general of the Department of Justice.

And I stayed in that role for 11 years from 2000 to 2011, through three presidential administrations, through the Clinton administration, both terms of the Bush administration, and part of the Obama administration, because the IG is nonpartisan and normally remained when the administration changed. It was a tumultuous time to be the inspector general of the Department of Justice, both before the 9/11 attacks and after the 9/11 attacks with the changes that occurred in the Department of Justice.

So I did that for 11 years until 2011, when I thought: time for change. Change is good for an individual. Change is good for an organization. 11 years was a long run and I stepped down. So that was my tenure. That's how I got to be the Justice IG and that was my tenure as the Justice IG.

Jack Goldsmith: So you had a lot of big cases, and your book talks about all of these, but just to give us a flavor of the kind of things you dealt with in DOJ, what were some of the highlights?

Glenn Fine: Sure. I'll give you the highlights of them. And then I'll explain one in more detail to describe the importance of an IG, an independent IG, and what an IG can accomplish. So we did a series of very consequential cases, including how Robert Hanssen, the most damaging spy in FBI history, evaded detections while spying for the Russians and the Soviets for two decades, right under the nose of the FBI as an FBI counterintelligence agent.

We did a review of intelligence information that the FBI and the DOJ might have missed to potentially detect and deter the 9/11 attacks before they occurred, and the sharing or lack of sharing of that intelligence information. We did a review of treatment of detainees after the 9/11 attacks, both in the United States, and in Guantanamo. We did reviews of politicized hirings and firings in the Justice Department. We did a review of, and many reviews of, corruption in the Federal Bureau of Prisons, which is part of the Department of Justice. So we did a whole series of consequential reviews, which I describe in the book.

I think one that's illustrative is the Hanssen Review, which I mentioned first. And Robert Hanssen, the most damaging spy in FBI history, spied for the Soviets for two decades when he was, he disclosed some of our most important intelligence assets, military technologies, the names of our assets who, some of whom were executed, sensitive information. It was incredible the amount of information he gave to the Soviets and the Russians over two decades.

When he was caught, the FBI was asked, well, how was he able to evade detection for so long, right within the FBI? And the initial answer was, well, it was because he was a counterintelligence agent, he used his spycraft, he was a master spy, he was clever and crafty, and that's how he was able to evade detection.

I was asked, my office was asked, by the United States Senate and the attorney general to review that and to review their internal security program and to find out how he was able to do that. We did an exhaustive review. What we learned was that nothing could have been further from the truth. He was a reckless agent who exhibited all sorts of red flags that should have aroused suspicion, but the FBI ignored them, and relied on an internal security program of trust. They trusted their agents would not be spies. That is a bad and a weak internal security practice.

So, for example, he would do things like deposit money, large amounts of money from the Russians in a bank account, a block from the FBI. He used FBI phones to contact the Soviets and the Russians. He hacked into the FBI computer systems to read intelligence. And when he was caught, he explained, well, I was doing this to show how weak the FBI's cybersecurity and internal security was on his computer systems, and the FBI blithely accepted that. He was an odd individual, and instead of dealing with that, they sent him off to the State Department on a detail where he was able to continue his spying unsupervised.

He was not given rudimentary internal security processes, such as a background investigation. He was supposed to get one every five years. He got one in 20 years. He was not required to be given a polygraph examination. He was not given a financial disclosure requirement. There are all sorts of things that were weak that should have been implemented that weren't.

And we wrote a report. We wrote a very lengthy classified report, which we gave both the Congress and to the Department of Justice. But we also wrote an unclassified executive summary, without classified information in it, which explained the problems, but also made recommendations to improve the situation, to improve their internal security. The FBI adopted some of them, but initially resisted others.

Eventually, Congress had a hearing. I testified at the hearing. Congress pressured the FBI, and ultimately the FBI adopted those recommendations. So in my view, that shows the value of an independent inspector general who's not afraid to call out embarrassing failures. Sometimes an agency is unwilling or hesitant to admit mistakes. And an IG can do that, but also make recommendations to improve the operations of the agency, and that's a perfect example of it.

Jack Goldsmith: It's also a good example about the formal limits on your power. Basically, it seems to me the power of an inspector general is to uncover facts. That's the main, or the primary, in these investigations, source of power and to reveal what happened. And then you make recommendations, but they are just recommendations.

And you just mentioned that the FBI adopted some of them, but then there's this dynamic with Congress. If the executive branch doesn't follow through, can you just say more about how that dynamic works? What was your experience in terms of how often your recommendations were taken up and how often you had to go to Congress. What is Congress's role in this? What is the view of the attorney general? I mean, what is the dynamic about responding to your accountability recommendations?

Glenn Fine: That's a really good question. And you're right. The IG is not management, can't force the management of the agency to do anything, other than respond to the recommendations. Often they do respond, most of the time they either agree with the recommendations or they propose in a different recommendation that will reach the same result, which an IG should accept, as long as it does reach a positive result.

But then it's up to the agency to adopt the recommendation, and sometimes, many times, they delay or forget about it and move on to other things. So an IG has to be tenacious about it, and an IG has to follow up to make sure that the agency has actually adopted the recommendations that they said they would, and that they haven't forgotten about it. And sometimes they say they've adopted it on paper, and when we went back and audit or review it, that we find out that they have not.

Congress is very important in this regard because it also is effective in holding agencies accountable and I would always appreciate when Congress would have a hearing on our report. Because it was remarkable what a sense of urgency the agency would have to implement the recommendation once they knew that a hearing was happening. So Congress can provide pressure on the agency to actually implement the recommendation, as can a public report. A public report will shine a spotlight on a problem and sometimes that spotlight will induce the agency to actually implement the recommendation.

But let's be clear. The agency has lots of things on its plate, it's doing many things. So an IG has to be tenacious about going back again and again to make sure that those recommendations have been adopted, that there hasn't been backsliding, and that the agency is still focused on the critical problem that was identified in the first instance.

But you're absolutely right, Jack. It's not the IG. The IG is not a panacea. If the agency is not responsible, if the agency is not moving forward in adopting, the IG can simply shine a spotlight on things and keep proposing. But it's up to the agency and Congress to actually implement the recommendation.

Jack Goldsmith: Yeah, that's the thing I want to emphasize, Congress pays a lot of attention. I mean, first of all, any IG report of any significance is covered widely in the press. And second of all, Congress has a real interest in, it seems to me that Congress is a real source of power for inspectors general in terms of bringing pressure.

I don't know whether you do this directly or whether Congress just takes it up, but the various committees who cover these agencies very often will pride themselves, correct me if I'm wrong, but pressure the departments to adopt the reforms.

Glenn Fine: Yes. Congress is a source of influence and power. And Congress takes seriously the role and the recommendations of the inspector general, and that can induce the agency to make change. And it's not a partisan issue either. Some of the biggest supporters of IGs are Republicans. Some are Democrats. Good government and waste fraud abuse is not a partisan issue. So many of them support IGs and help the IG implement the change that is necessary in the agency.

Jack Goldsmith: And also, in my experience, one reason Congress, in a kind of bipartisan way, likes, or often in a bipartisan way, likes the inspector general is the inspector general can get information out of the executive branch that Congress itself has a hard time getting.

So, in some sense, and don't you get recommendations from Congress? Not that you have to take them up, but about taking up investigations? It seems to me, in some sense, the IG functions, in some circumstances, as a kind of proxy or substitute for a congressional investigation.

Glenn Fine: Sometimes. Congress does its own investigations. Often it doesn't have the staff or the ability to do those investigations and will ask the IG of the agency to do it. The IG does not have to do it if it's not within its resources or is not an appropriate investigation at the time. The IG can say no, and the IG often gets a lot of requests from individual members of Congress, again and again.

If there's a committee of jurisdiction that asks the IG to do it, the IG is more likely to do it. Now to be clear, the agency has the authority to prevent the release of information to Congress, but that rarely happens, and the IG is normally responsible about what information is released. It uses and can use and provides to Congress.

So there's an interesting dynamic between the agency and Congress and the IG is reporting to both and some people have called it akin to straddling a barbed wire fence. Sometimes it feels that way, but ultimately you have to be straightforward and credible with both of them to be effective.

Jack Goldsmith: Okay. So, let's talk about how you came to be the acting inspector general of DOD. And I imagine since DOD is so much larger than DOJ, that's a different in-kind task or not?

Glenn Fine: It's a different, not in the role of the IG, but in the scope of the IG, and the size of the IG for definitely, for sure. So I stepped down as the Department of Justice IG. I went to a big law firm for a while, which was challenging and interesting, but I think I'm a recidivist, what can I say? I was, I wanted to go back into government and I was asked to be the principal deputy inspector general of the Department of Defense Inspector's General Office. There was an IG of the Department of Defense IG Office, who was interested in resigning, but also wanted to leave it to an experienced IG.

So he asked me to come. I was the principal deputy. He announced his resignation soon thereafter, and I became the acting IG, or what is called the “Principal Deputy Inspector General Performing the Duties of the Inspector General of the Department of Defense” for four and a half years.

By the way, that's, I would say that's the longest job, that second one, was the longest job title in government. Three lines on the signature block until somebody told me no, no, I know somebody who has a longer job title than you. I said, yeah, what is that? What could possibly be longer than that job title? And he said, me, I'm your special assistant. So he was right. He had that. He had me there.

Jack Goldsmith: And just before you go on and say what you did, did you have all of the power and authorities of the inspector general as acting inspector general?

Glenn Fine: Yes. As the acting inspector general or the principal deputy serving as the acting, yes, you had all the powers and the authority. And I was given advice, basically said: you're the acting IG, so act. So I did, I did it as I tried, I tried to do it, as I did the Department of Justice IG, even though I knew I may not be there forever, but while you're in the role, you have to take the role seriously and do it as best you see fit. And there was a general who had a famous maxim, when in charge, take charge. So I tried to do that and I did it for four and a half years.

It is different in size for, it is, it dwarfs the Department of Justice. The Department of Defense is the largest organization of any kind in the world in terms of employees. It has over 3 million employees. It has an $800 billion annual budget. If you compare the size of the budget of the Department of Defense to the gross domestic product of every other country in the world, it'd be the 21st biggest country in the world, right behind Saudi Arabia, right ahead of Argentina.

So it is enormous in what it does. And so that was a challenge just to get your arms around all the things that it did, the varied responsibilities, the military culture. But I will say that being an IG is similar across agencies. And I had that experience and that, that helped me. And I had terrific staff at the Department of Defense inspector general's office.

So another difference, by the way, between the Justice and the Department of Defense inspector general's office, besides the size, in the DOJ IG we had 400 employees, in the DOD IG we had over 1,700 employees, is the focus. In the Justice Department, the main focus is domestic, although they have some foreign operations, mostly domestic. In the Department of Defense, it's international, and you had to understand and be aware of international relations, foreign relations, what was happening in other countries.

So when I was the DOD IG, I read the paper differently. I would still read the sports page first. Always did, always will. But I would focus on international affairs because I had to understand them, because we had oversight over Department of Defense operations all around the world, including wars in Iraq and Afghanistan, where I was what was called the lead inspector general for overseas contingency operations.

So it was a challenge for sure, but it was an important operation and I enjoyed the challenge.

Jack Goldsmith: What was the hardest and biggest thing you did there? What was the most challenging, or most important of your investigations?

Glenn Fine: Well, it's hard to just pick one, but I'll go through a few and then just…

Jack Goldsmith: Pick a few. Yeah, that's fine. Just give us a flavor of the kind of things you did.

Glenn Fine: So we had criminal investigations of all sorts of problems in Department of Defense: contracting, healthcare fraud, mischarging of labor for procurements, release of sensitive technologies to our adversaries abroad, counterfeit parts.

So we had the Defense Criminal Investigative Service, which did all sorts of criminal investigations. We did audits of the financial statements of the Department of Defense, which the deputy secretary of defense called the largest financial statement in the history of the universe, which was huge. They never have received a clean opinion, although they're making progress, but still they're pretty far from a clean opinion.

We did oversight of the wars, as I mentioned, in Iraq and Afghanistan and around the world. I was what's the lead inspector general for overseas contingency operations, meaning we had to issue reports on waste and abuse in those wars, as well as the status of the wars.

But I guess I will say one of the most noteworthy of the cases was called the Fat Leonard case. It was the worst corruption scandal in Navy history. Fat Leonard, so-called guy who was the head of a ship-servicing company called Glenn Defense Marine Asia in the Pacific. And he serviced Navy ships in port. He provided them water, sewage treatment, tugboat services, supplies, all sorts of things. But in order to get those contracts, he compromised and bribed many Navy officers with small things first, tickets, dinners, trips, and then large things, cash, prostitutes.

And in return, he demanded that the ships go into his port, that they give him the contract, that they provide him information on the competitor's bids. And that they overlook his exorbitant charges. He was like a intelligence agent. He would groom Navy officers with little things until he had them on the hook. And then he would demand something in return.

And ultimately, after a decade or so, the Defense Criminal Investigative Service along with Naval Criminal Investigative Service in the U.S. Attorney's Office found enough evidence on him to indict him, lured him to San Diego, arrested him, and he began cooperating.

And scores of Navy officers were implicated. 33 people were charged and either pled guilty or found guilty of trial, and hundreds more were censured. So it was a tremendous scandal in Navy history. And it compromised their ability to perform its mission because so many people were involved.

Jack Goldsmith: All right. I want to go back to presidential control and removal issues.

But before I do that, as a segue, there's always a question of who's watching the watchers and there's no government agency that's above reproach. There's no government agency that's not potentially subject to incompetence or corruption or abuse, and I assume that's true of Inspectors General as well. So the question is that true? And who watches the watchers?

Glenn Fine: That's a really important question and everyone needs oversight, including inspectors general. Now, there are people who watch the inspectors general. Congress does. We're regularly called up to testify, to brief them, to answer questions about how we're operating. So that's one oversight mechanism. The Government Accountability Office is often asked to review the operations of IGs. The press does, a free and fair and robust press is important to do that. Nonprofit groups do that as well.

But ultimately the most significant one is what's called the Council of Inspectors General on Integrity and Efficiency, the umbrella group of inspectors general. All inspector generals or federal inspector generals are part of this group. And they have a committee called the Integrity Committee, and it's consists of some IGs, a representative of the FBI, the Office of Government Ethics.

And they receive complaints about inspectors general committing misconduct, as well as covered persons, meaning high level officials who report to the inspector general. And they review the complaints and if it's serious and needs an investigation, they ask another inspector general to investigate that complaint.

In my view, that's not sufficient. I don't think it's a good idea to have volunteers investigating each other, and the Integrity Committee investigations have taken too long. They're not consistently done. And they may not get the same priority as the IG gives other matters under his or her jurisdiction.

So one of my recommendations for reform in the book is that the Integrity Committee ought to have a professional staff, ought to have a budget and a professional staff, that would investigate these allegations to do them more effectively, more professionally, more consistently, so that we do have a better question of who is watching the watchdogs, because everybody needs oversight and watching.

Jack Goldsmith: Okay, now I want to turn to what happened with inspectors general under the first Trump administration. You mentioned that before the 2022 reforms, which we'll come back to, that the removal standard was at least as presidents interpreted it, basically just lack of confidence. And as I recall, President Obama removed one inspector general. Is that correct?

Glenn Fine: That's correct, and cited lack of confidence initially.

Jack Goldsmith: Yeah. And my sense also was that was kind of a big deal because even though the removal standard was kind of weak, there was kind of a norm against interfering in an inspector general, absent real abuse or something like that.

And during the first Trump administration, I think there were many removals. Can you just overview what happened during the first Trump administration?

Glenn Fine: Yeah. So during the first Trump administration, at the beginning, there were not many removals and it was generally consistent with how IGs operated in the past.

But in 2020, there was a series of removals, five removals or attempted removals in a very short period of time that was not consistent with the precedent. The first person removed was the IG for the Office of the Director of National Intelligence, who had brought the Ukraine whistleblower matter to Congress, which had eventually led, in part, to the first impeachment of President Trump. After that, President Trump removed him.

I was removed next, as the acting IG of the Department of Defense. It was after the pandemic hit and the Congress appropriated trillions of dollars in pandemic relief funding. But also created a Pandemic Response Accountability Committee, a committee of IGs to oversee the money. And there had to be one person selected to be the chair of the Pandemic Response Accountability Committee. I drew the short straw, and within a week President Trump replaced me as the acting IG, and therefore I could not be on the committee and my tenure had ended.

He replaced the Transportation IG. He replaced the State Department inspector general, and he tried to replace the HHS IG. So it's a very short period of time. There were five who were either replaced or tried to be replaced, which was unusual, wasn't illegal. He had the authority to do that, but it was different than in the past, and it was a break with the treatment of IGs in the past.

Jack Goldsmith: And in some sense, the 2022 reforms that you mentioned that were in the National Defense Authorization Act, were designed at least to make it a little harder for presidents to do this.

So we talked about it before, but just tell us one more time what those reforms did. And then I want to ask you how effective you think they'll be.

Glenn Fine: So they were bipartisan reforms in 2022. They required the president, instead of just giving reasons why he was removing the IG, to give the substantive rationale, including detailed and case specific reasons, and then wait 30 days before removing the IG.

Some of the IGs in 2020 were put on administrative leave immediately. And this reform in 2022 said that you had to give a specific reason why the IG was put on non-duty status, administrative leave, and under, only under certain circumstances, such as providing a threat to the workplace.

It also narrowed who could serve as an acting IG when the permanent IG was removed. So to serve as an acting IG, it had to be the first assistant, meaning the deputy, or a high level official in another IG's office who had served in that other IG's office for at least 90 days or another confirmed IG.

And in addition, if the president has not nominated someone to replace an IG, when there's a vacancy for 210 days, the president is supposed to give Congress notice and the reasons why, and a projected timeframe on nomination. So those are the changes that showed a bipartisan desire to support IGs. But there's still process changes.

And in response to your question, how effective will it be? I think if the president is determined to remove an IG, the president can remove the IG, just giving case specific reasons and waiting a few days. So I don't think it prevents the president from removing IG, it just makes them give reasons why. And ultimately Congress can oppose it or raise their voice, but it's the president's authority to do that.

Jack Goldsmith: So it's going to be an interesting question, whether Trump is even, we don't know yet, even more aggressive in chopping down inspectors general, especially ones that aren't quote unquote loyal to him. Because the plan, as stated by President Trump and some of his senior officials, is to assert full unitary executive control over the executive branch and all agencies.

And you know, the inspector general is a counterpoint to that. So I can imagine, especially since the IG can, as you said, on his or her own, take up an investigation inside the department without seeking anyone's permission. So I at least predict that inspectors general will be a serious focus of the Trump administration.

I don't, I'm not asking you to predict or not, but I'm just wondering if you have any thoughts about that. How do you think the IGs will hold up under that kind of, I mean, most of an inspector general office is, are nonpolitical appointees. I guess my question is, how easy is it for a president to basically shut down or direct an inspector general office, a determined president, by removal, replacement, or maybe even non-replacement?

Glenn Fine: So it's not impossible and it's hard to predict. I hope it doesn't happen. IGs have been an important source of independent oversight and it should be a nonpartisan issue. And as I said before, that's not a Republican issue. That's not a Democratic issue. And Congress has some of the biggest supporters of IGs and wants the IG to be effective.

But IGs are not foolproof and it's not a panacea. It depends on the right people being in the office who have the backbone to stand up and to do the important work that needs to be done. It also relies on the agency head taking seriously what the IG does, so if the IG even makes a recommendation, the agency head ignores it or doesn't cooperate, that's a problem.

And it requires Congress also to support the IGs. But a determined president can put in someone who doesn't understand the role and adhere to the role but they are deep organizations and they are full, filled with, you know, dedicated career public servants who believe in the mission. And as I said before, I would hope that it would be viewed as not a partisan issue to detect and deter waste, fraud, and abuse and misconduct.

But I can't say for certain that it wouldn't be diminished or affected or hampered. I would hope that whoever's in the role stands up and accepts the challenge and does the important work that needs to be done, even at the cost of sometimes losing their job, because that's, it's possible and that's not the worst thing in the world. So, we'll just have to see. And I hope that the supporters in Congress also stand up for IGs as well.

Jack Goldsmith: So just as a counterpoint to my concern, and as evidence of how important and consequential inspectors general are, I saw this morning that Vivek Ramaswamy talked about, for his new government efficiency organization, however that's going to work. He actually mentioned that they could work with or hand things off to inspectors general to follow up on evidence of waste, fraud, and abuse that they found. So, you know, it may be that they'll work very aggressively with inspectors general, depending on what the aim is and what the department is.

Glenn Fine: I hope so. IGs and the Government Accountability Office know where there is waste, fraud, and abuse, and can be a fertile source of information and evidence and investigation and audit and evaluation. That's not necessarily a bad thing to look carefully for that waste, fraud, abuse. And if they rely on IGs, effective IGs who are able to do their job, being tough but fair, I think that would be a positive thing.

Jack Goldsmith: So I want to talk about your last two chapters and wrapping up. You have a chapter on lessons learned during your two IG stints. What are some of the main lessons learned?

Glenn Fine: So you're right, in the back of the book, I have ten lessons learned for IGs. There's an expression in the IG community, if you've seen one IG, you've seen one IG. They're all not the same. But I think there are universal principles that apply to IGs regardless of the agency, even regardless of the level of government, state, local, or federal.

So I do provide a bunch of them. I'll mention a few of them. One, the cornerstone is independence. It's critical to have independence as an IG. Without that, you do not have credibility and you're not going to be effective. So I think that is a critically important thing for IGs to safeguard.  You want to have a good relationship with the agency head. By that, I mean professional, but not be so isolated. You want to be professional and communicative and that's it.

It's also important in my view as an IG to tell the good with the bad. You're not simply just to play gotcha. You're also to point out what things can get the agency in trouble and to provide lessons learned from the past for them to consider. And also one of the most important things that I would tell our employees is it's often the role of an IG to clear individuals who've been unfairly accused and it has more credibility when the IG, the independent IG does it, unhampered by the agency. The agency itself did it, nobody would believe it. But if the independent IG does it, it has more value.

As I mentioned, you need to provide practical recommendations for improvement. It's easy enough to identify a problem. It's harder to find a practical recommendation to improve that doesn't cost more money because it's not the IG's job to give out the money or allocate the money. It's the agency's job, but you should try and make that careful.

You need to take whistleblower complaints seriously. Some of the most important complaints and cases derive from whistleblower matters. One, two more and then you need to, as I mentioned, follow up on recommendations. You can't just accept the agency's representation that they have completed the agreed upon action, you need to follow up. As one attorney general once said to me, his motto was, in God we trust, all else we verify. So I think we need to verify.

You need to strive for timeliness. It doesn't make sense. It's not helpful if the report's done so many years after the fact that things have moved on, that it's just not valuable anymore when the agency has moved on from these things.

And then the final thing I'll say, and I'll tell a story about this if that's okay, you're not going to be popular. Don't expect to be popular. IGs are often viewed as the skunk at the picnic. You're either too hard or too soft. You're engaging in a whitewash or a witch hunt. You're either a lapdog or a junkyard dog. Sometimes you're all of that in the same case by different size. You're never going to be popular and don't expect to be popular.

And a story reflects this point. When I first became the inspector general of the Department of Justice, I was asked to go to Capitol Hill and brief a senator about a report we had just issued. And I did that, and I brought with me my deputy, Paul Martin, great guy, been with me for a long time. He's now the inspector general of the United States Agency for International Development.

Paul and I went up the Hill, we briefed, I briefed the senator about the report. Then after the briefing, he looked at me. And he pointed his finger right at me and he said, now I want to tell you what I think about inspectors general. You're going to do things I don't like. You're going to do things the attorney general doesn't like, or do things the entire Congress doesn't like. Nobody's going to like you. And he kept pointing his finger at me and telling me, nobody will like you. Don't try to be liked. If you think that you're wrong, no one will like you.

And finally, I think my deputy Paul had heard enough because he interjected, don't worry about that, senator. Even I don't like him. And the senator cracked up and that was the end of the meeting. And it was humorous in retrospect, but there's a point to that story. And I would tell that story to our staff. Our job wasn't going to be liked. We're not going to be the most popular. I know I wasn't the most popular person in the Justice cafeteria, the Department of Defense food court.

But I hope we were viewed as tough, but fair. I hope our work was respected. Most important, I hope we helped improve the operations of the agencies. That's the critical job we had, regardless of whether we're popular or not.

Jack Goldsmith: And finally, what are the most, just two or three of the most important reforms in your mind for the, for inspectors general? Or as many as you want to discuss.

Glenn Fine: Okay. So, no, there are a few. I do think we ought to have a better answer to the question of who's watching the watchdogs. You asked that question. We need to have a better integrity committee. I think IGs ought to have a term of office. If there's a term of office for the head of the FBI, 10 years. If there's a term of office for the head of the Government Accountability Office, 15 years, I think IGs ought to have a term of office.

I don't think we should have IGs who are responsible for two agencies. It's hard enough to run and manage one. It's almost impossible to do two. So I think one is enough and that should be the limit. I think we ought to have a fair evaluation system to evaluate IGs to make recommendations when there's an IG who's not doing his or her job effectively and is well beyond the range of responsible effective management, we don't have that. And as a result, it can be difficult to remove an IG or maybe become political moving, removing an IG.

And I also think that IGs ought to have full authority within their agency. Most specifically, the IG ought to have full authority in the Department of Justice. In the Department of Justice, the inspector general does not have authority over attorneys in the exercise of their legal duty, that's the responsibility of the Office of Professional Responsibility office, a legacy organization that existed before the IG and it's never been changed. I, and my successors, believe the IG has the ability, the expertise, and the independence to exercise that authority appropriately.

Jack Goldsmith: So I'll just add to that, and maybe I can say it more strongly than you. In my experience, the Office of Professional Responsibility is not an effective agency. It's not effective at oversight for a variety of reasons, and I guess I haven't been surprised to watch Justice Departments resist extending the inspector general's jurisdiction over attorneys, but I do think it's a good idea.

And let me just close with asking about one other reform related to at least DOJ, and that is, why is it important that inspectors general have the subpoena power? They don't currently have subpoena power.

Glenn Fine: They don't. A few IGs do: the Department of Defense IG has it, the Veterans-

Jack Goldsmith: I didn't know that, okay. But the DOJ one doesn't, right?

Glenn Fine: Correct. DOJ doesn't. I think there's only three that do. DOJ is not one of them. At DOD, we never had to use it because people would cooperate because of the ability of us to subpoena them, but in Department of Justice, it doesn't.

Jack Goldsmith: Let me just draw a distinction here so people understand. As I understand it, you have full authority, or explain this, over people who are still employees.

Glenn Fine: Correct.

Jack Goldsmith: But you can't coerce ex-employees to cooperate, and often they're vital to your investigation. Is that right?

Glenn Fine: Exactly. All IGs have the authority to subpoena documents, all documents, but testimony, the DOJ IG does not. So as a result, we, when you're an employee of the agency, you must cooperate with the IG. Otherwise, you could be disciplined or fired. But when you leave the agency, you do not have that same responsibility, and the IG does not have the ability to subpoena your testimony.

So there were examples of several cases that I handled and also current IG handles were important officials during the course of investigation or when an investigation has started left the agency, were crucial to understanding what happened. We wanted to talk with them about what they did at the agency, their official roles, and we're not able to do that.

In fact one investigation, I remember we had a very important person We scheduled an interview with her. She was the, one of the subjects of the investigation. It was an administrative investigation. And the day before the interview, she resigned. And then we never had a chance to talk with her about her role in that matter. So I think in a testimonial subpoena power is important particularly with regard to officials’ conduct as officials when they leave the agency.

Jack Goldsmith: Glenn Fine, congratulations on your terrific new book and thank you very much.

Glenn Fine: Thank you very much for having me.

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