Testimonial Subpoena Authority and Inspectors General

Testimonial Subpoena Authority and Inspectors General

INSIGHTi

Testimonial Subpoena Authority and
Inspectors General
February 2, 2023
On June 7, 2022, President Biden signed the Strengthening Oversight for Veterans Act of 2021 (P.L. 117-
136). This law authorizes the Department of Veterans Affairs Office of Inspector General (VA OIG) to
issue subpoenas for testimony to support the office’s oversight activities. Inspectors general (IGs) have
asked Congress in recent years to provide similar authority across the IG community. While Congress has
not passed such legislation, it has considered proposals to do so and may do so again in the future.
IGs and other proponents of expanding testimonial subpoena authority for IGs have argued that it would
allow IGs to more effectively investigate some individuals suspected of defrauding federal programs. The
ability of agency employees to stymie OIG investigations by leaving federal service has been a
particularly frustrating problem for oversight stakeholders.
This Insight provides background information on current testimonial subpoena authority for IGs,
proposals to expand that authority, and considerations for Congress. It focuses on subpoena authority
generally and does not discuss rules for the issuance or enforcement of individual subpoenas.
Current Law and Practice
Under the Inspector General Act of 1978 (IG Act; 5 U.S.C. Appx.), most OIGs have authority to issue
subpoenas for “documents, reports, answers, records, accounts, papers, and other data in any medium” as
well as any “tangible thing” or “documentary evidence” (IG Act §6(a)(4)). This authority has at least two
key boundaries. First, IGs cannot subpoena documents from agencies or current federal employees (which
are required to comply with IG requests for information without subpoenas), and, second, it does not
authorize IGs to issue subpoenas for testimony.
A few OIGs currently have testimonial subpoena authority, including the VA OIG, the Department of
Defense (DOD) OIG (IG Act §8(i)), and the Pandemic Response Accountability Committee (PRAC; IG
Act §11 note). The authority granted to each of these three IG units differs. For example, the DOD OIG
must provide the Attorney General notice seven days before issuing a subpoena, while the PRAC does not
have any specific limitations or notice requirements.
The VA OIG has the most restrictions. It is required to notify the Attorney General 10 days in advance of
issuing a subpoena, and the Attorney General may object, in writing, if the subpoena would interfere with
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an ongoing investigation. In that circumstance, the VA OIG may not issue the subpoena. Additionally, the
VA OIG is required to include, in its semiannual reports to Congress, information on the exercise of this
authority. In its Fall 2022 report, VA OIG shared that it had issued two subpoenas for testimony from June
to September 2022. Finally, VA OIG’s testimonial subpoena authority expires on May 31, 2025.
Recent Legislative Activity
In addition to the Strengthening Oversight for Veterans Act, Congress has considered legislation that
would further expand testimonial subpoena authority. A recent example is the Inspector General
Independence and Empowerment Act (H.R. 2662, 117th Congress). The version of the bill that passed the
House provided testimonial subpoena authority with controls including notice to the Attorney General and
review and approval of each subpoena by a panel of IGs. While a number of other provisions in this
legislation were amended and included in the FY2023 National Defense Authorization Act (P.L. 117-263),
this section was not.
Considerations for Congress
Testimonial subpoenas are likely to remain a point of interest for both the IG community and Congress,
and there may be additional attempts to create a consensus policy to authorize these subpoenas for more
OIGs. While both chambers of Congress have demonstrated at least some support for testimonial
subpoena authority, the controls included in the Strengthening Oversight for Veterans Act and the House
text of the Inspector General Independence and Empowerment Act both indicate that Congress may prefer
a more incremental approach. Congressional consideration of this issue in the future may include the
following issues.
Control
As discussed above, Congress has previously considered different strategies to provide oversight on
individual subpoenas including approval by the Attorney General and the creation of subpoena panels.
Some in Congress have been concerned that IGs could abuse their subpoena authority in the absence of
such controls. Congress might continue with those strategies or develop others that adjust which officials
have control and how that control is exercised. In doing so Congress may wish to weigh factors such as
how time or resource intensive procedures are, how officials are likely to review subpoena requests, and
whether Congress should specify factors for those reviews.
Monitoring
Congress might also consider what information, if any, it would like to receive about testimonial
subpoenas. Congress’s decisions to sunset the VA OIG’s authority in 2025 and require reporting on
testimonial subpoena use may imply that it intends to monitor the VA OIG and evaluate the testimonial
subpoena authority based on what it learns.
If Congress wants more information, a number of options are available such as requiring the Council of
the Inspectors General on Integrity and Efficiency to report on testimonial subpoena use across the IG
community or requiring IGs to notify Congress when they issue testimonial subpoenas.
Benefits
Finally, Congress might wish to consider the expected benefits of providing testimonial subpoena
authority to OIGs and how those benefits compare to the potential risks and administrative costs. If
Congress believes use of testimonial subpoena authority will be limited, then it may be more difficult to
justify new procedures and responsibilities for OIGs and other officials that would support that authority.

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On the other hand, if Congress anticipates that testimonial subpoena will help OIGs promote
accountability and protect public funds from waste, fraud, and abuse, then it may wish to prioritize
legislative action.

Author Information

Ben Wilhelm

Analyst in Government Organization and Management

Disclaimer
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