Rep. Darrell Issa has a long and applauded nonpartisan record of support for inspectors general (IGs) and their important role in uncovering fraud, waste and abuse in government. It is therefore surprising to find him under attack for proposing to give IGs the tool of subpoena power to obtain deposition testimony from witnesses.
As one who served as an inspector general, only to be fired by the succeeding president for doing my job of uncovering fraud, waste and abuse, I think I have the experience to comment on Mr. Issa’s proposal.
Those opposed to his proposal have characterized it as one more way to cripple the presidency. But if that position were accepted (and I would not) that contention suggests that the IG position should not exist. As long as IGs exist, they should have a necessary tools to perform their delegated responsibility.
Witness subpoena power is not a novel tool within our judicial and law enforcement systems. For example, the Securities and Exchange Commission can subpoena witnesses to testify. Even attorneys for plaintiffs and defendants in private civil cases can subpoena witnesses to give depositions. IGs already have the power to subpoena documents, but without a witness explaining the documents and adding unrecorded knowledge about them, no certainty can exist on their meaning.
It is no response to the need for testimonial subpoena power that possible fraud, once identified, can be referred to the Department of Justice. In the real world, U.S. attorneys’ offices are overloaded and, thus, almost always insist that the referring agency provide a case on a silver platter and will not usually do the investigation to determine if there is a case.
One very large case in my IG office demonstrates how the IG’s lack of witness subpoena power frustrates justice. My investigators uncovered issues relating to more than $100 million in grants from four federal departments to entities controlled by a single individual. The financial documents we subpoenaed demonstrated movement of the grant money through various entities controlled by that individual. It certainly appeared likely that those intricately woven transactions, with the funds going here and there among the entities, was for the final purpose of placing the funds in the controlling individual’s pocket while attempting to conceal the misappropriation.
When we brought the case to the Department of Justice and the U.S. attorney, all agreed it was more than just suspicious. But that is not enough to prove a criminal case. Among other elements needed is scienter - the knowledge and intent of the individual. For that, what was needed was testimony explaining the documents and setting forth circumstances establishing the individual’s responsibility for what was done with the funds. The IG’s staff was responsible for gathering that information, but without deposition subpoena power, that was not realistically possible. When I was fired, my investigators were still trying to unlock the needed evidence. I understand their efforts were stymied.
I recognize that some reasonable people disagree with me on the merits of having IGs to weed out fraud, waste and abuse. But there should be no disagreement that it makes little sense to have IGs without providing them the necessary tools to do their job.
GeraldWalpin served as IG of the Corporation for National and Community Service from January 2007 through June 2009, when he was fired by President Obama. His lawsuit to be reinstated is awaiting the decision of the U.S. Court of Appeals for the District of Columbia.