Can an Investigative Commission for the Trump Era Actually Work? A Proposal

The White House at night, taken on June 9, 2015. (Nathan Rupert, https://flic.kr/p/v15ZJi; CC BY-NC-ND 2.0, https://creativecommons.org/licenses/by-nc-nd/2.0/) How should Americans, and Congress and the Biden administration, think about the problem of accountability for the past four years? On a routine basis, commentators and politicians throw around concepts that are more mood than they are operational guidance. People talk of criminal prosecution, often without specifying precisely what charges they would like filed against what proposed defendants. Or they talk of looking forward, not backward, without specifying even an attitude—let alone a policy—toward what people see when they do glance backward. Or some people talk vaguely of a truth and reconciliation commission, without saying what such a commission would be empowered to look at, what its powers might be, or what Americans should want it to accomplish. There is, to be sure, a serious set of conversations lying beneath the vagaries. A recent report from Protect Democracy usefully surveys a number of different accountability mechanisms and proposes a series of principles for thinking about “non-recurrence.” And there has been a lively debate about the role that transitional justice, truth commissions and prosecutions have to play in a post-Trump era. What there have not been are a lot of detailed proposals about what sort of body would do what sort of investigation. With Donald Trump no longer in office, it’s time for a more granular conversation about accountability, truth, prosecution, and forgiveness for the Trump era, one based on specific proposals for ways to handle a sprawling mass of allegations, suspicions, and media reporting suggestive of improprieties large and small. It’s a mammoth task, one that could easily get shunted aside out of a desire for unity or could, absent strong and careful leadership, turn into a vindictive effort to smear political appointees who were—in some instances—just trying to keep the trains running under extraordinarily difficult circumstances. A few days ago, one of the present authors, writing with Daniel Byman, tried to imagine the substantive mandate of a commission to investigate the storming of the Capitol on Jan. 6. The problem, as one thinks about the broader Trump era, is similar, only endlessly vaster.  It is similar in the sense that, as with a Jan. 6 commission, one needs a mechanism that is not limited to criminal questions, that has elements of a congressional committee investigation and elements of journalism. Many of the concerns about the behavior of Donald Trump and his political appointees within and toward the executive branch are not criminal in character. Even where they are, resolving the criminal questions—particularly where charges do not emerge—does little to shed light on abuses that may not rise to the level of indictable offenses that are provable in court. Moreover, the criminal process does not address questions of what policy changes might be in order in response to abuses. And, perhaps most importantly, the criminal process is not designed to tell the story, agency by agency, of the Trump administration’s impact on the U.S. government. Waiting for journalists and historians to tell these stories will not aid the short- and medium-term cause of reform that might reasonably depend on the stories’ details. Understanding these stories, separating controversial policy choices from abuse of government power from simple corruption, is arguably more important than charges against any individual. Yet the difference in scale between the events of Jan. 6 and the substantive mandate of any kind of broader investigative effort for the Trump years is so enormous as to create an almost debilitating problem for the latter effort. The known and alleged predations of the Trump administration on good government, after all, ran across the federal government’s many Cabinet departments and agencies. They involved an astonishing array of abusive uses of public resources and government powers from the highest levels and from individual political appointees alike—everything from the president’s attempting to use the Justice Department to go after his political enemies to a State Department official carrying a whip around the office. How might Congress design a commission that could even begin to tackle the range of activities about which the public is entitled to an accounting? There are possible models, the 9/11 Commission being the most prominent. But none seems optimized for the task at hand. An alternative approach is to build a kind of distributed investigative commission on the back of an existing system that already has the ability to investigate misconduct in every important agency in the federal government: the network of inspectors general. The government’s inspectors general are themselves a victim of the Trump era. As early as the presidential transition in January 2017, Trump aides reportedly told a number of inspectors general that they could be fired or removed, though the transition team ultimately opted not to remove them. The first three years of the Trump administration, as John Hudak has noted on the Brookings Institution’s FixGov blog, saw the departure of 37 inspectors general. As of April 2020, 13 out of 74 inspector general posts were either vacant or had an acting inspector general, including inspector general offices at the CIA and Department of Defense. The administration’s feud with inspectors general reached its peak over the course of six weeks in 2020, when the former president fired or removed a total of five inspectors general, three of whom were serving in an acting capacity. This included Steve Linick, the inspector general at the State Department, who was then investigating alleged misconduct by then-Secretary of State Mike Pompeo. (Less than three months after Linick’s departure, his replacement too left with no explanation from the State Department.) Trump also ousted the acting inspector general at the Department of Health and Human Services, Christi Grimm, after her office released a report in April 2020 that detailed “widespread shortages of PPE” in hospitals and “severe shortages of testing supplies” during the early response to the pandemic. When asked about Grimm’s report at an April 6 press conference, Trump responded , “Did I hear the word ‘inspector general’? Really? It’s wrong,” and asked the reporter for the inspector general’s name. On April 3, 2020, Trump fired Michael Atkinson, the inspector general of the intelligence community, who had earlier shared a whistleblower’s complaint with Congress that detailed the former president’s conduct with regard to Ukraine. Trump also removed the acting inspector general of the Department of Defense, Glenn Fine, in April 2020. At the time, Fine was concurrently serving as the chairman of the Pandemic Response Accountability Committee that sought to monitor the distribution of trillions of dollars in coronavirus aid; his ouster from the Pentagon job disqualified him from serving in the pandemic relief oversight role. And in May 2020, Trump removed the acting inspector general of the Department of Transportation, Mitchell Behm, who also had been serving on the Pandemic Response Accountability Committee. After House Democrats sought his reinstatement, a Department of Transportation spokesperson told reporters that Behm was never appointed to the role, despite the fact that Behm’s biography on the department’s website and a pandemic oversight press release specifically identified him as the acting inspector general. Behm’s biography on the department’s website even explicitly stated, “Per the Federal Vacancies Reform Act and our own Order of Succession, on February 1, 2020, Mitch Behm assumed the authority and duties of Acting Inspector General for the Department of Transportation.” Behm’s replacement, Howard Elliott, had been appointed acting inspector general while he was concurrently serving as the head of the department’s pipeline and hazardous materials agency—an agency that falls under the investigative authority of the inspector general’s office. Indeed, what to do about Trump-appointed inspectors general jammed into their roles is a bit of a puzzle for the Biden administration. The appointment of Elliot’s replacement, Eric Soskin, for example, was rammed through the Senate by then-Majority Leader Mitch McConnell in a party-line vote even while the office was investigating whether Transportation Secretary Elaine Chao—McConnell’s wife— favored contracts in Kentucky while McConnell was running for reelection. In 2019, the House Oversight and Reform Committee also investigated Chao for connections to her fa
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