Mr. Speaker, I yield myself as much time as I may consume. Mr. Speaker, I rise in strong support of H.R. 3154, the Inspector General Access Act. Mr. Speaker, I thank Representatives Richmond, Hice,…
Mr. Speaker, I yield myself as much time as I may consume.
Mr. Speaker, I rise in strong support of H.R. 3154, the Inspector General Access Act.
Mr. Speaker, I thank Representatives Richmond, Hice, and Lynch for the bipartisan manner in which they worked on this very important bill.
The Inspector General Access Act would allow the IG of the Department of Justice to investigate allegations of misconduct by Department attorneys. The IG is statutorily independent and currently has the authority to investigate other DOJ personnel, but is barred from pursuing appropriate investigations into the attorneys at the Department.
Under current law, the authority to investigate attorneys is restricted to the Office of Professional Responsibility within DOJ. OPR is not statutorily independent; its head is not Senate confirmed like the IG; and treating attorneys differently from other personnel is unfair.
One year ago, Michael Horowitz, the inspector general at the Department of Justice, testified before the Committee on Oversight and Government Reform: ``This bifurcated jurisdiction creates a system where misconduct by FBI agents and other DOJ law enforcement officers is conducted by a statutorily independent IG appointed by the President and confirmed by the Senate, while misconduct by DOJ prosecutors is investigated by a component head who is appointed by the Department's leadership and who lacks statutory independence. There is no principled reason for treating misconduct by Federal prosecutors differently than misconduct by DOJ law enforcement agents.''
Mr. Speaker, I include in the Record the letter from Mr. Horowitz expressing his strong support for this bill before us today.
U.S. Department of Justice,
Office of the Inspector General,
November 29, 2018.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform, House
of Representatives, Washington, DC.
Hon. Elijah E. Cummings,
Ranking Member, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman and Ranking Member Cummings: I write to
express my strong support for H.R. 3154, the ``Inspector
General Access Act of 2017'' (Access Act), which your
Committee approved unanimously on September 27, 2018. The
Access Act would amend the Inspector General Act (IG Act) to
provide the Department of Justice (DOJ) Office of the
Inspector General (OIG) with authority to investigate
allegations of misconduct against DOJ attorneys for their
actions as lawyers, just as the OIG has authority under the
IG Act to investigate allegations of misconduct made against
any non-lawyer in the Department, including law enforcement
agents at the Federal Bureau of Investigation (FBI), the Drug
Enforcement Administration (DEA), the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF), and the U.S. Marshals
Service (USMS). Currently, under Section 8E of the Inspector
General Act, the OIG does not have the authority to
investigate allegations of misconduct made against DOJ
attorneys acting in their capacity as lawyers; this role is
reserved exclusively for the Department's Office of
Professional Responsibility (OPR).
The Access Act has received broad, bipartisan support over
successive Congresses because it promotes independent
oversight, transparency, and accountability within DOJ and
for all of its employees. For these same reasons, in 1994,
the then-General Accounting Office, now the Government
Accountability Office (GAO), issued a report that found that
preventing the OIG from investigating attorney misconduct was
inconsistent with the independence and accountability that
Congress envisioned under the IG Act.
The OIG has long questioned this carve-out because OPR
lacks statutory independence and does not regularly release
its reports and conclusions to the public. Moreover, to our
knowledge, the DOJ Inspector General is the only Inspector
General in the entire federal government that does not have
the authority to investigate alleged professional misconduct
by attorneys who work in the agency it oversees. Providing
the OIG with authority to exercise jurisdiction in attorney
professional misconduct cases would enhance the public's
confidence in the outcomes of these investigations and
provide the OIG with the same authority as every other
Inspector General.
Alleged professional misconduct by DOJ prosecutors, like any
alleged misconduct by DOJ agents, should be subject to
statutorily independent oversight.
Over fifteen years ago, the Department and Congress
recognized the importance of statutorily independent OIG
oversight over all DOJ law enforcement components (FBI, DEA,
USMS, and ATF) when Attorney General Ashcroft authorized the
OIG to conduct additional law enforcement oversight in 2001
and Congress legislated it in 2002. Yet, allegations against
Department prosecutors for professional misconduct continue
to be handled exclusively by OPR. As a result, presently, if
an allegation of misconduct is made against the FBI Director,
it is reviewed by the OIG; by contrast, if an allegation of
professional misconduct is made against the Attorney General,
it is handled by OPR, a Departmental component that the
Attorney General supervises.
The rationale supporting independent oversight for alleged
misconduct by law enforcement applies with equal force to
alleged wrongdoing by federal prosecutors, regardless of the
nature of the alleged misconduct. There is no principled
reason to have two standards of oversight at DOJ--one for
federal agents, who are subject to statutorily independent
and transparent oversight by the OIG, and one for federal
prosecutors, who are not for allegations of professional
misconduct. This is particularly true given the extraordinary
power that Department lawyers have to charge individuals with
crimes, to seek incarceration, and to pursue the seizure of
assets and property.
The OIG's independence, established by statutory
authorities and protections, facilitates objective and
credible investigations of misconduct allegations, as well as
unbiased reports that identify and make useful
recommendations for improving the Department. The OIG is
headed by a Senate-confirmed Inspector General who can only
be removed by the President, with prior notice to Congress.
The OIG's statutory independence is bolstered by the OIG's
dual obligation to report findings and concerns both to the
Attorney General and to Congress. The independent OIG is able
to make critical investigative and audit findings without
fear of reprisal.
Conversely, OPR has no statutory independence or
protections. The OPR Counsel is appointed by and answers to
the Attorney General, and can be removed or disciplined by
the Attorney General. Although a November 27, 2018 letter
from DOJ's Office of Legislative Affairs (OLA) on H.R. 3154
states that ``OPR has always acted independently,'' it does
not point to any protections, statutory or otherwise, that
exist to ensure OPR's independence from the Attorney General,
nor has DOJ proposed strengthening OPR's independence by
adding such protections. Indeed, the letter fails to explain
or even address why DOJ believes it is better to have a non-
statutorily independent entity handle attorney professional
misconduct cases rather than a statutorily independent
organization, as is the case for law enforcement professional
misconduct allegations.
The OIG's independent and transparent oversight enhances the
public's confidence in the DOJ's programs and improves
its operations.
In addition to independence, the OIG considers transparency
a crucial component of its oversight mission. With limited
exceptions, the OIG ensures that the public is aware of the
results of our work. The majority of our reports are posted
on our public website at the time of release to ensure that
Congress and the public are informed of our findings, in a
comprehensive and timely manner. The OIG, consistent with the
IG Act, publishes on our website summaries of investigations
resulting in findings of administrative misconduct by senior
government employees and in matters of public interest even
when the subject is not prosecuted. We post such summaries
without identifying the investigative subject consistent with
the legal requirements under the Privacy Act. Because of this
commitment to transparency, there are currently hundreds of
OIG reports, audits, and reviews posted on our web site.
There are also summaries of dozens of OIG investigative
reports posted, including recent reports involving
significant misconduct by senior DOJ officials.
In contrast, there are currently only a total of five
reports (other than annual reports) posted on OPR's website.
Four of those five reports are from 2008 and were the result
of OPR's joint work with the OIG, and which the OIG posted on
our website consistent with the IG Act and our practice. The
fifth report was completed by OPR in 2013 and only released
in 2015 in response to a Freedom of Information Act (FOIA)
request. Moreover, although the OLA letter states that ``OPR
discloses a substantial amount of information about its work
and findings in its annual report,'' this information is not
reported in a timely or comprehensive manner. Congress and
the public only find out about some, but not necessarily all,
of OPR's work when it issues an annual report.
An example of this dichotomy can be found in a case
involving an Oregon lawyer who was arrested by the FBI and
wrongly imprisoned after mismatched fingerprints linked him
to the 2004 bombing at a Madrid train station. The OIG
investigated the allegations of FBI agent misconduct, while
the Department's OPR investigated the allegations of attorney
misconduct. This bifurcation led to inconsistent treatment.
The OIG report on the actions of the FBI agents was published
on the OIG's website, but OPR did not publish the report on
the conduct of the DOJ attorneys who were involved in the
same case.
Transparency ensures greater accountability, and sends an
important deterrent message to other Department employees.
The credibility of the Department's disciplinary process is
inevitably reduced when the responsible component operates
under the direction of the Department's senior leadership and
is not subject to public scrutiny because of limited
transparency.
The OIG has demonstrated its excellence in reviewing complex
legal and factual issues, including employee ethics and
misconduct matters.
Over the past 30 years, the OIG has shown that it is
capable of fair and independent oversight of the DOJ. The
jurisdictional limitation of Section 8E(b)(3) is an
unnecessary historical vestige of the fact that OPR was in
existence prior to the statutory creation of the OIG in 1988.
Those who unsuccessfully tried in 2002 to forestall Congress
from providing the OIG with oversight of alleged misconduct
by FBI and DEA agents contended that those cases required
specialized expertise--just like the Department argues
currently that prosecutorial oversight requires specialized
expertise--and that argument was roundly rejected and has
proven to be entirely without merit. The decision by Congress
to extend OIG jurisdiction in 2002 to encompass misconduct by
FBI and DEA agents has allowed for significant and important
oversight of DOJ's law enforcement operations, and has had
significant positive impact on the integrity of those
agencies' operations.
The OIG has consistently demonstrated our ability to handle
complex legal and factual issues related to our misconduct
reviews, including those involving FBI and DEA agents as well
as, on occasion, ethics issues involving DOJ lawyers. In
addition to our recent investigation of the FBI's actions
prior to the 2016 presidential election, which involved
evaluating the professional conduct by FBI agents, FBI
lawyers, and FBI senior officials, we have investigated the
FBI's actions involving its former agent Robert Hanssen, the
FBI's activities related to James ``Whitey'' Bulger, the
DEA's oversight of its confidential informant program, the
DEA and other components' handling of sexual misconduct and
harassment cases, the operation of the FBI laboratory, ATF's
actions involving Operation Fast and Furious, and the FBI's
use of its national security authorities (National Security
Letters, Patriot Act Section 215, FISA Amendment Act Section
702).
Each of those and many other reviews resulted in
independent and transparent findings by the OIG, and resulted
in changes to Department operations that enhanced their
effectiveness and thereby increased the public's confidence
in those programs. Moreover, OIGs throughout the government,
including at the Department of Homeland Security and the
Securities and Exchange Commission, have authority to
investigate misconduct allegations made against attorneys at
those agencies and they have demonstrated that they are fully
capable of dealing with such matters covering a wide range of
complex legal issues. The DOJ OIG is the only OIG, to our
knowledge, that is barred by the IG Act from reviewing
misconduct by lawyers within the agency it oversees.
The Access Act would provide the OIG with oversight over
Department lawyers in a manner that is entirely
consistent with its oversight authority over Department
non-attorneys.
The present oversight system that applies to allegations
made against any DOJ non-lawyer, as provided for in the IG
Act and Department regulations, is precisely the oversight
mechanism that the Access Act seeks to apply to Department
lawyers. Specifically, under the current system for DOJ non-
lawyers, all non-frivolous misconduct allegations must be
provided to the OIG for the OIG's review and determination as
to whether it is of the type and nature that warrants and
necessitates independent OIG investigation. Given the OIG's
limited resources, the OIG handles only those allegations
that warrant an independent OIG investigation, and therefore
the OIG returns routine and less serious misconduct
allegations to Department components, such as the FBI's
Inspections Division and the DEA's OPR, for their handling
and investigation. For those matters that the OIG retains,
when the OIG completes its investigation, it sends its report
to the component so that it can adjudicate the OIG's findings
and take disciplinary action, as appropriate. The Access Act
creates a similar practice, by maintaining the Department's
OPR to handle misconduct allegations that do not require
independent outside review as determined by the OIG, much as
the internal affairs offices at the FBI, DEA, ATF, and USMS
remain in place today.
We are unaware of any claims by Department leaders that
this approach has resulted in ``different investigative
standards,'' ``decrease[d] efficiency,'' or ``inconsistent
application'' of legal standards. There is no evidence that
it has impacted the components ``ability to successfully
defend any significant discipline decision before the Merit
Systems Protection Board.'' Yet this parade of horribles is
precisely what the OLA letter claims will occur if attorneys
are treated in the same manner as Special Agents and non-
attorneys at the Department, rather than continuing to
receive the special oversight treatment granted to them under
the current carve-out provision under the IG Act. This
argument it meritless. Indeed, the disciplinary processes at
the FBI and the DEA have substantially improved since the OIG
obtained statutory oversight authority over those components
in 2002, in significant part due to the greater transparency
and accountability that has resulted from the OIG's
oversight.
I very much appreciate your strong support for my Office
and for Inspectors General throughout the federal government.
Sincerely,
Michael E. Horowitz,
Inspector General.
Mr. Speaker, H.R. 3154 would not prohibit OPR from investigating attorneys. It would simply add the ability to investigate attorneys when appropriate
in the IG's authority, an additional layer of accountability.
Empowering IGs has been, and should continue to be, a nonpartisan issue.
The Committee on Oversight and Government Reform relies on the work of IGs, and we strongly support ensuring they can do their jobs effectively.
This bill was ordered reported by the Oversight Committee unanimously. I urge my colleagues to continue their support for IGs by supporting the Inspector General Access Act.
Mr. Speaker, I yield back the balance of my time.
