Portman Presses Experts on Testimonial Subpoena Authority Guardrails in Upcoming Bipartisan Legislation To Protect Independence of Inspectors General

WASHINGTON, DC – Today, U.S. Senator Rob Portman (R-OH), Ranking Member of the Senate Homeland Security and Governmental Affairs Committee, pressed expert witness Allison Lerner, Chair of the Council of the Inspectors General on Integrity and Efficiency, regarding testimonial subpoena authority guardrails in his upcoming bipartisan IG Independence and Empowerment Act which will bolster protections for Inspectors General (IG). The legislation will build upon the bipartisan Securing Inspector General Independence Act, which was introduced earlier this year, to strengthen a 2008 IG protection law that has been routinely flouted by successive administrations from both political parties. 

A transcript of the exchange can be found below and videos can be found here and here

Portman: “Thank you, Mr. Chairman. First of all, thank you all for being here and for the testimony you’ve already provided. It’s very helpful. The 30 day notice period and the provisions that we want to include within that so that there’s some rationale that Congress and the American people can understand, it’s really important. In the testimonial subpoena, we put guardrails in place for a reason because we think this is a power that could be abused. We want to make sure it’s not. In that area, there is some discussion of putting a sunset on it. I understand if it’s a sunset, that it’s very short, that it would be hard for it to work operationally. It takes a while to get this process up and going. But what about a sunset of four or five or six years for the testimonial subpoenas? How would you feel about that? Anyone feel free to chime in?” 

Chair of Council of the Inspectors General on Integrity and Efficiency, Allison C. Lerner: “I’ll start. Our strong preference, Congress always has the ability to revoke an authority that it’s granted. Our concern with the sunset provision is that it’s a blunt instrument. Our preference would be to have a requirement to have the use of these authorities reviewed by an independent entity like CIGIE or GAO and allow the results of that review to inform Congress’s decision about whether to continue or to revoke this authority. But if a sunset date is necessary and we understand that that’s important for some members, we would ask that the period be long enough to enable us to have sufficient numbers of examples to make the case for the use of the authority. Since in many instances, the mere fact that a testimonial subpoena authority could be issued is enough to ensure an individual’s compliance with an interview. We would prefer a ten-year period before sunsetting, and then that’s in no small part because of the amount of time that it’s taken us to obtain this authority in the first place. It’s taken us ten years with congressional support to get this far, and we’re worried that we could, with a hard and fast sunset, lose that authority and have great difficulty getting it reauthorized.” 

Portman: I do think it’s important also the guardrails we placed on it, and we’ll have further discussions about that because I think this is an important issue for us to try to resolve today as we go into mark up in the next couple of weeks on this legislation.” 


Portman: “Thank you, very much,  Mr. Chairman. I won’t take the full time. I just want to say that I think this has been a terrific hearing and exchange of views. And it seems to me that of all the issues we’ve touched on, probably the one that has had the most potential controversy is the testimonial subpoenas. I appreciate your initial response, Ms. Lerner, to my questions and to Chairman Peter’s questions on that. I think it’s important to lay out what the guardrails are because we’ve talked a lot about guardrails without getting into detail. And I do think there’s some safeguards here that Senator Peters and I have included in our bill that are quite effective because I do think that it’s an enormous responsibility that the IGs would be taking on to subpoena people after they leave. 

“Number one, the Attorney General would review any subpoena going out and would be able in that case, as I understand it, to provide information as to any potential conflicts with other investigations that might be ongoing. I think that’s important, that information could be considered by this panel. It’s a panel of IGs, three Senate-confirmed IGs would have to approve it. The CIGIE chair is responsible for randomly selecting those three Senate-confirmed IGs to review it. 

“Third, it would only be available for audits, evaluations, inspections, and investigations that the IG was undertaking and so not some fishing expedition and also would have to be reasonably related to that case. Fourth, CIGIE was being asked to issue standards, which they have done before in other areas, and the standards I think would be consistent with standards we’ve laid out before, including that it be reasonably related. And fifth, there’d be a Congressional reporting requirement, and these are semi-annual reports to Congress. So it’s not a report prior to the issuance, but it is a report to Congress to let us know how it’s working and what’s going on. And, Ms. Lerner you talked about that earlier as maybe a potential way for Congress to be able to understand without having a sunset put into the legislation itself. 

“Finally, I would just say and, Mr. Horowitz you mentioned earlier this morning, that people would still have access to the courts with regard to the subpoenas. So anyway, Mr. Chairman I appreciate you letting me do that. I think our bill is balanced. I think it’s a good way to ensure the independence of IGs, but also ensure that these investigations can continue. Thank you.”