Running special investigations: The inspector general model

Georgetown Law Journal, Jul 1998 by Bromwich, Micheal R

MICHAEL R. BROMWICH*

INTRODUCTION This year will mark the twentieth anniversary of two statutes important in ensuring oversight of the executive branch of the federal government. The first is the Ethics in Government Act,l best known as the statute that authorizesand in some cases compels-the appointment of independent counsel in cases involving allegations of misconduct against high-ranking executive branch officials. One sure sign that allegations of misconduct have reached critical mass is when the preliminary and vague call for an investigation becomes a demand for the appointment of an independent counsel. This demand is heard whether or not the allegations bear any resemblance to the relatively narrow class of allegations that trigger the process by which an independent counsel is appointed.2 Indeed with the number of independent counsel appointed in the early years of the Clinton administration and the allegations that have swirled around the White House since, the arcana of the Act have become well-known to most Washington journalists and to a surprisingly large portion of the public. In the eyes of many, the only serious investigation involving public corruption or misconduct by high-ranking officials is an independent counsel investigation, even though no one has any idea in advance who the independent counsel might be.

The second statute, the Inspector General Act of 1978 ("IG Act"),3 has lived a far quieter and less controversial existence. The IG Act authorized the creation of offices whose mission is to detect and prevent fraud, waste, and abuse in their respective departments and agencies across the executive branch.4 In 1988, after lengthy legislative battles, the IG Act was amended to create inspectors general (IGs) in the Departments of Treasury and Justice.5 IGs have come to be relied on by their respective agencies and increasingly by the Congress to deal with a wide range of alleged misconduct, including misconduct by high-ranking agency officials. In the last several years, the actions of law enforcement agencies, in contexts such as Ruby Ridge, Waco, and the FBI Laboratory, have drawn substantial public attention and have highlighted the need for aggressive and reliable executive branch oversight over powerful law enforcement agencies.

Unlike independent counsel, IGs have led a collective existence that has largely been below the radar screen of otherwise well-informed people. This surprisingly pervasive lack of knowledge and understanding exists not only in the Congress that created these offices but also in the departments and agencies in which they perform their work. Misperceptions about IGs abound. Many in Congress view IGs and their offices as captives of the departments and agencies in which they operate.6 From their perspective, top-level managers in the departments and agencies frequently view IGs as something akin to moles of the Congress, lacking commitment to the mission and objectives of the department and agency, dedicated to their own survival, and serving as conduits of sensitive and embarrassing information to enemies of the agency in Congress. The truth about IGs-to the extent it is possible to draw coherent and accurate generalizations about agencies that are, in fact, quite different from each other-is more interesting and more complicated than either of these extreme views would suggest.

Offices of Inspector General (OIGs) present an institutional model quite different from independent counsels. Like independent counsel, OIGs have the responsibility for conducting special investigations of broad public interest and importance. But unlike independent counsels, OIGs do not exist for the sole purpose of conducting a single special investigation, nor even-given their audit, inspection, and program evaluation functions-just to conduct investigations. OIGs are permanent institutions, have a person at the head of the institution who is politically accountable, are subject to meaningful congressional oversight, and, through the budgetary appropriations process, have real limits on the resources they can allocate to any specific investigation. For these reasons, OIGs have many of the qualities and characteristics that many commentators and political figures have identified as desirable-if not essential-in an institution conducting independent counsel-type special investigations.

This article describes various aspects of the IG institutional model as well as the specific experiences of the Department of Justice (DOJ) OIG in conducting special investigations over the past three years. I will examine the following aspects of IG operations: 1) the IG appointment process; 2) the process by which significant investigations are commenced; 3) the staffing of such investigations; 4) the tools used in such investigations; 5) the duration and cost of OIG special investigations; 6) the oversight of such investigations; and 7) the publication of investigative results.

I. THE IG APPOINTMENT PROCESS