IGs seek subpoena clout

By Michael Doyle | 07/26/2021 12:18 PM EST

Interior Department Inspector General Mark Lee Greenblatt. Francis Chung/E&E News

Assistant 1 clammed up.

And there was nothing Interior Department investigators could do to pry open potential testimony — a situation that would change under a bill approved by the House this summer, although some lawmakers have expressed serious reservations.

While probing an alleged ethics violation by a senior Trump administration political appointee, Interior’s Office of Inspector General sought the cooperation of the appointee’s former aide, called Assistant 1 in a new report.

“We attempted to interview Assistant 1 after they left the DOI to learn more about their role … but Assistant 1 declined to participate in a voluntary interview. As a former employee, we could not compel an interview,” the OIG noted (Greenwire, July 21).

Even without the former assistant’s help, investigators were able to conclude that the unnamed senior political appointee had violated an ethics pledge by meeting with a past employer.

But the continued ability of contractors and former federal workers to duck investigators’ questions bedevils inspectors general, who hope for change with legislation.

“IG oversight can be significantly hampered when we cannot compel a witness with crucial information to testify. For example, in cases where an employee has resigned or retired, our inability to talk to them can result in a potential gap in relevant evidence,” Interior Inspector General Mark Lee Greenblatt told E&E News in an interview.

The issue was highlighted when Justice Department IG Michael Horowitz testified that, without this subpoena authority, his office was unable to interview former Attorney General Jeff Sessions during an investigation of the Trump administration’s child separation policy.

And in late 2018, EPA’s inspector general reported on the fate of two investigations that has been initiated into the actions of former Administrator Scott Pruitt, including his lease of a Capitol Hill condo tied to a lobbyist (Greenwire, Nov. 30, 2018).

Investigators interviewed witnesses and reviewed records, but got no further.

“Mr. Pruitt resigned prior to being interviewed by investigators. For that reason, the OIG deemed that the result of the investigation was inconclusive, " the IG said in a summary.

In a Jan. 28 letter, the Council of the Inspectors General on Integrity and Efficiency listed obtaining testimonial subpoena authority as one of the group’s top legislative priorities.

Greenblatt is vice chair of the council.

“The good news is that there is an awareness of this issue, and there is substantial support on the Hill, on both a bipartisan and bicameral basis, who support giving IGs that type of authority,” Greenblatt said.

Several stand-alone bills have been introduced to give IGs enhanced subpoena powers, and on June 29, the House passed the subpoena provisions as part of H.R. 2662, the "IG Independence and Empowerment Act."

Under the bill, an IG’s request for a subpoena would first have to be approved by a three-member panel made up of other inspectors general.

Like-minded bills to enhance the IGs’ subpoena authority have repeatedly been introduced since 2009, and in 2018, the House passed a stand-alone bill by voice vote.

But not all lawmakers think they are a good idea. Kentucky Republican Rep. James Comer called the testimonial subpoena a “tool that can be easily abused for political purposes,” and 182 GOP House members voted against the broad IG bill.

“For example,” Comer said, “this authority would enable new Biden-appointed inspectors general to subpoena former Trump administration officials under the guise of any investigation, regardless of the real purpose for the investigation.”

Comer added that “this provision does not provide the necessary protections for former federal employees who may be subjected to the legal fees of dealing with a subpoena, instead forcing them to pay for counsel.”

In committee, Rep. Fred Keller (R-Pa.) offered an amendment to ban the use of testimonial subpoenas on any federal employee not employed at the time of enactment of the bill and to require the IG to cover the legal fees for any subpoenaed individuals. That measure failed on an 18-21 vote.

Kevin Bogardus contributed to this report.