Posted by John Elwood: AmeriCorps Inspector General Walpin Fired -- Some Preliminary Observations: http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245168784
So President Obama has given notice that he's firing Gerald Walpin, the Inspector General of the Corporation for National and Community Service, which operates "AmeriCorps." Walpin, in the midst of a "noisy departure" from his post, alleges that he was fired for sniffing out wrongdoing of a politically connected former NBA player who has gone on to become mayor of Sacramento. The acting U.S. Attorney for the Eastern District of California, meanwhile, reportedly found that Walpin's conclusions seemed overstated and did not accurately reflect all the information gathered in the investigation. He reportedly has referred Walpin to the President's Counsel on Integrity and Efficiency (PCIE), a body established by executive orders 12301 and 12805 to handle investigations into the conduct of Inspectors General themselves. Norm Eisen, Special Counsel to the President for Ethics and Government Reform, reportedly told Walpin last Wednesday that it was "time to move on" and he would be fired if he didn't resign. When Walpin refused to resign, the President fired him, presumably effective 30 days hence. The Inspector General Reform Act of 2008 provides that ��[i]f an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer." (Before the 2008 amendment, the IG Act of 1978 merely required notice of the reasons, not advance notice.) In his letter to Speaker Pelosi and President of the Senate Joe Biden sent last Thursday, President Obama stated that "[i]t is vital that I have the fullest confidence in the appointees serving as inspectors general." The letter continued, "[t]hat is longer the case with regard to this inspector general." (I have not yet been able to find a PDF of the letter.) After Senator Grassley fired off a letter demanding information, Counsel to the President Gregory Craig responded that "We are aware of the circumstances leading to that [PCIE] referral and of Mr. Walpin's conduct throughout his tenure and can assure you that the president's decision was carefully considered." The allegations of a politically motivated firing are getting all the attention, but being a Law Nerd, I wanted to focus briefly on, well, some of the nerdier aspects of the imbroglio. Some commentators have pointed to the bare statement of reasons in President Obama's letter as (1) an indication that he is hiding something, as though he could not give good reasons for the firing; and (2) questioned whether that spare statement of reasons complied with the terms of the Inspector General Reform Act of 2008, which Senator Obama cosponsored. I suspect that a significant reason the President was very spare in his letter was to avoid setting the precedent of giving Congress detail about firing decisions. They may not admit it, but Presidents, Democratic and Republican, seek to safeguard the prerogatives of the office. They do not want Congress to expect detailed reasons for firing an IG, even if they have them. (Of course, it sometimes is advantageous as a practical matter to "keep your powder dry" so you don't have to walk back from previously proffered statements of reasons.) Whether stating the IG lacks the President's confidence is a sufficient statement of the "reasons" for the firing is an interesting question. The Executive Branch undoubtedly construes the requirement narrowly to give the President maximum freedom of action, and so would not read the statute to require specificity in the absence of an explicit textual requirement. It would say that even a stripper statement of "reasons" such as apparently provided here gives some degree of confidence that the firing meets whatever minimal constitutional standards that govern such a decision and wasn't for a prohibited reason (race, sex, etc.). At the same time, the President's letter does not state the reasons he lacked confidence in Walpin. And saying only that the President doesn't have confidence in the official is almost tautological, because presumably the President has confidence in those officials he retains.
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