Trump Is on Hallowed Ground in Challenging Inspectors General
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The letter from a bipartisan group of senators wanting to know why President Trump fired the inspector general of the intelligence community deserves an answer. Our suggestion would be for Mr. Trump to send the noble senators — who include Charles Grassley, Susan Collins, and Mitt Romney — a copy of the Constitution of Massachusetts, with a cover note saying he did it on the advice of John Adams.
Before Adams was America’s second president, he was, among other things, the primary author of the Massachusetts Constitution. That parchment features a number of firsts — a bicameral legislature, say, or ratification — that later emerged in the United States Constitution framed at Philadelphia. Its greatest gift to America, though, is its articulation of the principle of separated powers.
That no branch of government could hold all the powers is America’s greatest protection against kings and dictators. It’s not the only one (there is, say, the well-regulated militia and the Second Amendment’s right of the people to keep and bear arms; there is the rest of the Bill of Rights and the prohibitions against titles of nobility). It all is undergirded, though, by separated powers.
Here are Massachusetts’ famous words: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”
That is the context in which to think about the senators’ letter to Mr. Trump. After all, the intelligence community IG he just cashiered, Michael Atkinson, is not the only IG Mr. Trump has removed in recent days. There is also the acting Pentagon inspector general, Glenn Fine, who had been tapped by a committee of IGs to be the top IG overseeing the $2.2 trillion coronavirus relief package just passed.
We, for one, would like to think this is the beginning of a broader assertion of per se partiality protecting the presidential position in respect of separated powers. If so, Mr. Trump certainly has his work cut out for him. There are currently 74 of these upright walking bipeds, gnawing at the timbers of separated powers. That number comes from a primer issued by the Congressional Research Service in January of this year.
The legal superstructure for many of the IGs, the Inspector General Act, passed by a Democratic Congress in 1978 and was signed by President Carter. The IGs, the CRS report says, “are intended to be independent, nonpartisan officials.” Their constitutionality, in our view, depends on from whom they are supposed to be independent. If it’s the President, there’s a serious constitutional problem.
That’s because the Constitution grants to the President, and only him, 100% of the powers of the executive branch. Yet the CRS reckons IGs “possess several authorities to carry out their respective missions, such as the ability to independently” — there’s that word again — “hire staff, access relevant agency records and information, and report findings and recommendations directly to Congress.”
As President Trump crafts his answer to the bipartisan senators, he could lend to his answer his own element of bipartisanship. He could include the so called Harmon Memo that was handed up by the Justice Department under President Carter’s attorney general, Griffin Bell. It warned of the constitutional problems with the inspectors general law then working its way through Congress.
“It is our opinion that the provisions in this bill, which make the Inspectors General subject to divided and possibly inconsistent obligations to the executive and legislative branches, violate the doctrine of separation of powers and are constitutionally invalid,” said the memo. It was written by the head of Justice’s Office of Legal Counsel, John Harmon, who urged the problems be repaired — including removing the requirement that the President explain to Congress any removal of an IG. Good for Mr. Trump for redeeming this issue. John Adams would be proud.
Drawing by Elliott Banfield, courtesy of the artist.