The growing tendency of the Trump administration to butt heads with government watchdogs is putting career federal employees in a potentially difficult position, according to legal experts, forcing them to choose between insubordination and legal uncertainty.
Generally speaking, oversight of federal agencies by inspectors general and the Government Accountability Office is protected in statute and compliance with requests for documents or information is not up for negotiation. The Trump administration has dragged its feet or outright rebuffed watchdogs on some audits and investigations, however, setting up a clash between federal agencies and the bodies that provide oversight of them. Federal employees who are typically responsible for providing IGs and GAO the information they need are starting to find themselves caught in the middle of those tensions.
In a recent example, the Housing and Urban Development Department has slowed efforts to provide its inspector general with email and other records related to HUD’s implementation of disaster relief programs in Puerto Rico. The IG recently wrote a letter to HUD Secretary Ben Carson this week—obtained by The Washington Post—that the department’s delays have caused “oversight efforts to be diluted, become stale, or worse, halt entirely.”
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HUD has denied that it delayed getting information to the IG, which is evaluating whether the White House impeded the department’s efforts to provide relief to Puerto Rico after it was devastated by Hurricane Maria in 2017.
GAO previously lodged complaints that the White House and National Security Council were ignoring its requests on a wide range of topics. The auditors also released a report on President Trump’s transition in which they noted that administration officials refused to participate. In another instance, the Environmental Protection Agency did not provide comments on a draft report or a recommendation on the long-term costs to the government of climate change.
Earlier in the administration, the Homeland Security Department inspector general accused DHS of burying a report on its rollout of a travel ban Trump issued shortly after taking office. The department refused to allow much of the report to be made public, saying it was subject to attorney-client and deliberative process privilege.
“Invoking the deliberative process privilege, in this report and in future reports, would significantly hamper my office's ability to keep ‘Congress fully and currently informed about problems and deficiencies’ of the department, as required by the Inspector General Act,” said John Roth, then the DHS IG, who has since retired. “I am also unaware of other inspectors general who have been prevented from issuing reports on such a basis.”
In 2018, the Veterans Affairs Department engaged in a public spat with its IG. Then-VA Secretary Peter O’Rourke and Inspector General Michael Missal aired their grievances regarding access to documents through a series of public letters, which included O’Rourke harshly reminding Missal that the IG served as the secretary’s subordinate. Congress ultimately intervened by emphasizing in a spending bill that the IG had the right to any and all documents auditors requested.
Also that year, the General Services Administration inspector general faulted the agency for its “misguided” understanding of the auditor’s role as it investigated the cancellation of the relocation of the FBI headquarters. It further said GSA Administrator Emily Murphy was “clearly wrong” when she suggested the IG was improperly conducting its investigation. The IG noted that some GSA employees told investigators that they were instructed by their agency not to disclose certain information, such as a White House meeting between Murphy and Trump.
Just last month, the EPA again feuded with its auditor, with the IG saying the agency destroyed records it sought for an ongoing investigation into the Office of the Chief Financial Officer. EPA officials told the IG that the agency was prohibited from sharing the information due to a non-disclosure agreement and had therefore destroyed notes, while the IG said the document destruction “at a minimum limits and impedes the OIG’s access to EPA information.”
Arguments between auditors and agencies used to be more common, but Congress passed the IG Empowerment Act in 2016 to clarify that auditors should “have timely access to all records, reports, audits, reviews, documents, papers, recommendations or other materials available.” Michael Horowitz, chair of the Council of Inspectors General on Integrity and Efficiency and the Justice Department IG, has testified that the law “greatly enhanced” the capacity of IGs to do their jobs.
Cheri Cannon, managing partner at Tully Rinckey, a firm that practices in federal employment law, said career employees told to ignore mandates from investigators could find themselves choosing between facing disciplinary action for insubordination and being out of compliance with a lawful order. She said employees should create a paper trail to back up whatever decision they make and suggested they open a case with the Office of Special Counsel, as giving an employee an unlawful order is a prohibited personnel practice.
Federal employees retain a “right to disobey” under existing civil service statute, meaning they cannot face disciplinary action for failing to carry out an illegal order. Still, said Nick Schwellenbach, a former OSC official and currently the director of investigations at the Project on Government Oversight, that can be a hard decision to make in practice.
“In terms of real life consequences,” Schwellenbach said, “I think people are more afraid of their boss.” While employees may ultimately have resources to justify insubordination, he added, any justice is likely months or years off. “Your career may be in jeopardy, at least in the short or medium term until the wheels of justice can turn.”
Tom Devine, legal director at the Government Accountability Project, said protections for employees refusing to violate the law have “gray areas.” He added, however, that the law appears clear that retaliation for participating in an IG investigation—or obstructing congressional communications—would amount to a prohibited personnel practice.
The administration has also sought to block officials from providing information to and testifying in front of Congress, including those facing subpoena. There is more precedent for federal employees in that dilemma, if not more clarity. In 2003, Congress sought information from a career worker at the Centers for Medicare and Medicaid Services regarding President George W. Bush’s push to expand prescription drug benefits.
The political appointee in charge of the CMS at the time instructed the career employee not to comply with the request, despite a 1912 law that protects civil servants providing information to Congress. As a result of the dispute, the Justice Department’s Office of Legal Counsel issued an opinion giving agencies wide authority to ignore congressional requests. GAO ultimately ruled that CMS could not legally pay the political appointee’s salary because he was in violation of an anti-gag order appropriations rider, but the appointee by that point had already left government.
When dealing with IGs, the potential penalty for political appointees holding up requested documents or information is less clear.
The situation “puts career federal employees in jeopardy of being fall guys for the actions of politicals,” Cannon said. “The employee is the one at risk” and “ought to get a lawyer at that point.”
Schwellenbach reiterated that all federal employees should by default comply with all federal investigations, but conceded their bosses could put them in a “tough spot.”
“[This] is an area of extreme tension within our system,” he said.