How might Attorney General Sessions and his Deputy Rosenstein react if Horowitz discerns facts or reaches conclusions about Comey’s behavior that are contrary to or in tension with Rosenstein’s memorandum? Might they try to shut down the investigation or prevent the release of its conclusions? The IG Act provides that “[n]either the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing an audit or investigation, or from issuing any subpoena during the course of any audit or investigation.” But 5 U.S.C. app. § 8E also says that the Attorney General can assert supervision and control over DOJ IG “audits or investigations, or the issuance of subpoenas, which require access to sensitive information concerning,” among others, “ongoing civil or criminal investigations or proceedings,” “intelligence or counterintelligence matters,” or “other matters the disclosure of which would constitute a serious threat to national security.” Will Sessions or Rosenstein invoke these provisions to shut down Horowitz?
How will President Trump react once he realizes that the reasons for his decision to fire Comey will potentially be second-guessed by an Obama appointee? Will he fire Horowitz as he did Obama appointees Sally Yates and James Comey? Three months ago Jeffrey Toobin worried that Trump might shut down the IG investigation. But now the stakes of the investigation, and the potential downsides of allowing it to reach completion, are much larger.
If Trump decides to fire Horowitz, will he abide by the IG statute’s requirement that he give Congress 30 days’ notice before doing so, during which period Horowitz could continue to gather facts on the matter? Or will he follow the 1977 OLC opinion that concluded that the restriction was unconstitutional?
Will Horowitz accept House Oversight Chairman Jason Chaffetz’s request to investigate the firing of James Comey? If he does, will Trump and Sessions allow it to continue? The Inspector General Statute authorizes the IG to investigate at least the DOJ side of the firing, which could reveal a lot of truthful detail about the President’s decision. Sessions, Rosenstein, or Trump might not like that.
Senator Grassley counseled critics of the Comey firing to “suck it up and move on.” But Senator Grassley is also a famous supporter of inspectors general. And indeed, on November 2, he wrote a letter to Horowitz calling on him to intercede in the investigation into Hillary Clinton. Grassley wrote: “The public’s lack of confidence in the Justice Department’s ability to handle investigations related to former Secretary of State Hillary Clinton impartially ought to be of grave concern for its leadership. The entire matter is in desperate need of independent, objective, non-partisan oversight. As the Inspector General, that is your statutory duty.” Will Senator Grassley stand by this position, or will he now counsel Horowitz to suck it up and move on?