How Does The Government Investigate Its Own Corruption?

What is a Special Counsel, how does congressional oversight work, and more.
Robert Mueller (AP)

Robert Mueller (AP)

The first article in this series, GOP Admins Had 38 Times More Criminal Convictions Than Democrats, 1961-2016, argues that Republican administrations over the last half-century are more corrupt than the Democratic administrations. The second article, 8 Reasons GOP Administrations Are More Corrupt Than Democrats, proposes possible explanations. This article is a brief look at the Federal institutions that investigate possible political corruption and, if found, may prosecute it.

What Is an Independent Counsel? Special Counsel? Special Prosecutor?

Independent Counsel, Special Counsel, Special Prosecutor, and Independent Prosecutor are terms mostly used interchangeably. They refer to an individual, and their office and staff, appointed to work outside the normal structure of a government’s investigative and prosecutorial agencies. This is meant to avoid the conflict of interest in having a government officer investigate someone above them in the chain of command. Since 1875, the President or the Attorney General have appointed Special Prosecutors and Special Counsels to investigate and potentially prosecute executive branch crimes. Under the 1978 Ethics in Government Act, but subject to reauthorizations, the Attorney General could request an Independent Counsel for a particular investigation. Then, a three-judge panel (the Division for the Purpose of Appointing Independent Counsels, the “Special Division”, chosen by the Chief Justice of the Supreme Court) made the appointment. The Independent Counsel mechanism was authorized 1978-1992 and 1994-1999.

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Though Bill Clinton in 1994 had supported reauthorizing the Independent Counsel law for five years, calling it, “a foundation stone for the trust between the Government and our citizens,” the law expired on June 30, 1999. After eight investigations of his Administration, Clinton and the Democrats were no longer enthusiastic. Republicans, who opposed the law before Clinton, embraced it during his administration. The shoe is on the other foot … the other foot … the other foot… By 1999 the political establishment was ready for United States Code: Independent Counsel, 28 U.S.C. §§ 591-599 (1988) to expire.

Independent Counsel and Special Counsel investigations function essentially the same in practice but are different in how they were authorized. As examples, in both the current Russia probe led by Robert Mueller and the 1973-75 Watergate investigation, the Acting Attorney General appointed Special Counsels. In contrast, Independent Counsels, appointed by the Special Division, the three-judge panel, led the 1986-1993 Iran-Contra and 1994-2002 Whitewater, Lewinsky, etc., investigations.

In spite of President Trump’s tweet that Special Counsel Robert Mueller’s investigation is “illegal” and “UNCONSTITUTIONAL,” legal experts argue the Supreme Court’s previous ruling upholding the constitutionality of appointing of an Independent Counsel and other case law covers this. Under current law, the Attorney General can appoint a special counsel (or, until 1983 sometimes called special prosecutor) if he or she decides there is sufficient reason. With the Independent Counsel law, the judicial branch got involved – in theory, eliminating potential conflict of interest in the executive branch investigating itself. That part of the Ethics in Government Act has expired, but investigations go on: Robert Mueller’s team, for example, is busy.

What if there are not Independent or Special Counsels?

Independent Counsels are intended for special cases. However, the Executive Branch is investigating itself (as well as protecting its own interests) every day. This work is carried out in multiple agencies:

  • The Department of Justice’s (DOJ) range of responsibilities is vast, with some 116,000 staff. A part of its responsibility is protecting us, the citizens, from the government itself, and the government in its capacity as the instrument of the whole nation, from corruption, fraud, abuse of power and so on. Like a multi-headed hydra, many of the DOJ’s divisions have a bite. These divisions may investigate agencies of government:
    • DOJ litigating divisions, particularly the Public Integrity Section of the Criminal Division
    • The Federal Bureau of Investigation (FBI) with approximately 35,000 employees
    • US Attorneys – 94 offices with 11,000+ employees
  • Office of Inspector General (OIG) – 74 department and agency OIGs
  • U.S. Office of Special Counsel (OSC) with a primary mission to protect federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing

The Council of Inspectors General on Integrity and Efficiency, a Federal agency established in 2008, coordinates, trains, and oversees the 74 Inspectors General of Departments and agencies, according to the Inspector General Act of 1978. The 74th OIG, for the International Development Finance Corporation, was established in October 2018.

Section 3 (a) is sufficient introduction:

There shall be at the head of each Office an Inspector General who shall be appointed by the President, by and with the advice and consent of the Senate, without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations. Each Inspector General shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of such establishment. Neither the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation.

Ah, promised (and some broken promises) land. The 74 federal department and agency Inspectors General report between 2012-2016: 7,733 successful civil actions; 30,557 suspensions and debarments; 20,449 personnel actions; $88 billion recovered – as detailed in a total of 9,459 reports on investigations, audits, inspections, evaluations, and other actions. Inspectors General will investigate possible offenses, including those of Presidential appointees, in their agency. If they find evidence of criminal wrongdoing, they can refer their findings to the Department of Justice.

Among the subjects of the Environmental Protection Agency Office of the Inspector General (EPA OIG), recently resigned Administrator Scott Pruitt was the subject of at least 16 investigations by the OIG and other agencies. Of course, his attack on the environment he swore to protect is vastly more consequential than his shameless self-serving.

Tom Price, Secretary of Health and Human Services for all of seven excruciatingly long months, may yet feel a chill. The HHS OIG, calling Price’s air travel “extravagant, careless, or needless”, seeks to recover at least $341,000 in wasted spending. Overall Price’s air travel had cost the government more than a million dollars; Price promised to repay the government $51,887.

Over at Interior, Montanan Ryan Zinke, Secretary of the Interior, who rode a Park Service horse to his swearing-in, enjoyed a bumpy ride for all of his tenure – that ended (in disgrace per Trump norms) at the end of 2018. The Interior OIG, the U.S. Office of Special Counsel, the Government Accountability Office, and the House Oversight Committee have initiated 17 investigations, some already completed, into Secretary Zinke’s stewardship of his responsibility and self-dealing, more investigations than the last four Interior Secretaries’ 16 years combined.

In October, Housing and Urban Development Secretary Ben Carson wrote that HUD’s Suzanne Israel Tufts was going to take over as Acting OIG at Interior. Mary Kendall, the current Acting Inspector General, was surprised. A day later – and after considerable protest at what was interpreted as an effort to defang the OIG – the Administration said it was all a mistake, no such plan, nothing to see here. On October 30, 2018, the Interior OIG referred Zinke to the Justice Department for investigation. Now Ryan’s been bucked off. He’s landed on his feet, though, a comfortable new job with Artillery One, an investment firm.

Congressional Oversight

“Oversight” is a word that begs abuse. The word “oversight” has different meanings. Depending on context it can refer to “watchful and responsible care”, “regulatory supervision”, or “an inadvertent omission or error”. Though Congressional oversight may sometimes be an inadvertent omission or error, and sometimes deliberate smokescreening, its function as regulatory supervision is well-established in Constitutional law. Though oversight and investigation are not spelled out in the Constitution, the Supreme Court has held multiple times that oversight and investigation are inherent in the powers of Congress to pass legislation and authorize budgets. There cannot be responsible governance without the capacity to check how Federal money is used, how decisions are made, how the Executive Branch carries out its mandates under law, whether responsible people are carrying out their work, and if there is a corrupt practice. Indeed, the first Congressional investigation, including requesting papers from President George Washington, was convened in March 1792.

Much of what we know about various scandals results from Senate and House hearings on Watergate, Housing and Urban Development influence peddling, Iran Contra, Whitewater, etc. Congressional investigations have teeth because Congress has the power to subpoena documents and witnesses to testify, the ability to cite refusal to cooperate Contempt of Congress which can result in fines up to $100,000 and one-year imprisonment, and the power to refer findings to the Department of Justice for further investigation and prosecution.

Some investigations have been fishing expeditions. If the Congressional oversight does not relate to legislative matters, to the expenditure of Congressionally-mandated funds, to the execution of the laws, then it may be outside of the oversight and investigative authority of Congress.

The Rantt Rundown

Special Counsels get attention even when they maintain Muellerian silence. Less noticed by the public, US Attorneys, DOJ litigating divisions, the FBI, and the Inspectors General offices are deciding whether or not to pursue investigations, to demand settlements, and to refer or initiate prosecutions. Even though these agencies may have their own scandals, compromised investigations, protected VIPs, betrayed whistleblowers, and overzealous and corrupted law officers, they overwhelmingly protect the public. Congress, as well, may unreasonably stretch investigations, use them inappropriately as political warfare, or in partisan fashion hamper investigation. Nevertheless, the basic investigative and oversight function is fundamental to democracy.

President Trump, during his State of the Union address on February 5 said, “If there is going to be peace and legislation, there cannot be war and investigation. It just doesn’t work that way.” He’s half right. Peace is an absence of war – at the least. However, and quite the contrary to his assertion, investigation is the close partner of legislation.

As a country, we have wandered into a new territory that may increasingly depend on the public to protect these institutions as much as the public, often unknowingly, counts on their protection.

Rantt is publishing five articles in this series:

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News // Congress / DOJ / Donald Trump / Robert Mueller / Special Counsel