Inspector General Access Act of 2019

Madam Speaker, I move to suspend the rules and pass the bill (H.R. 202) to amend the Inspector General Act of 1978 relative to the powers of the Department of Justice Inspector General.

Madam Speaker, I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and include extraneous material on the measure before us today.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, I rise today in strong support of H.R. 202, the Inspector General Access Act. I thank Representatives Richmond, Hice, and Lynch for the bipartisan manner in which they worked on this very important bill in the last Congress.

The Inspector General Access Act would allow the inspector general 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.

The IG is barred from pursuing appropriate investigations into 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, and its head is not confirmed by the Senate like the IG is. Treating attorneys differently from other personnel is simply unfair.

Michael Horowitz, the inspector general at the Department of Justice, recently testified before our Committee on Oversight and Reform, and this is what he said: ``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.''

H.R. 202 would not prohibit OPR from investigating attorneys. It would simply add the ability to investigate attorneys, when appropriate to 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 Reform relies on the work of IGs. We strongly support efforts to help them do their jobs effectively and efficiently.

A bill identical to the one before us passed the House on a voice vote in the last Congress. I urge my colleagues to continue their support for IGs by supporting the Inspector General Access Act.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, I yield 3 minutes to the distinguished gentlewoman from the State of Florida (Ms. Wasserman Schultz).

Madam Speaker, I yield myself such time as I may consume.

On November 29, 2018, DOJ Inspector General Michael Horowitz sent a letter to the Oversight and Reform Committee in support of the Inspector General Access Act, and this is what he wrote: ``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.''

I include Mr. Horowitz's letter in the Record.

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 DOD'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 is 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.

If you have further questions, please feel free to contact

me.

Sincerely,

Michael E. Horowitz,

Inspector General.

On December 25, 2018, the New York Times editorial board wrote: ``It makes sense to give Mr. Horowitz's office oversight authority over the activities of Justice Department lawyers--as other inspectors general have over lawyers in their departments. Doing so would aid the cause of justice and strengthen the public's trust in an institution charged with upholding it.''

On December 30, 2018, the Miami Herald also published an editorial in support of the Inspector General Access Act. I hope the Senate will follow the quick and bipartisan action this body will take today when we pass this bill so that we can get it to the President's desk for his signature as soon as possible.

With that, Madam Speaker, I urge all of our colleagues to vote in favor of this very important legislation, and I yield back the balance of my time.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, I rise today in support of H.R. 202, the Inspector General Access Act of 2019. Inspectors general perform a critical oversight function with regard to misconduct at their respective agencies. This committee, the Oversight and Reform Committee, has a long history of advocating for IGs to have timely and complete access to all the information they need to fulfill their oversight and investigative functions.

In continuance of that mission, H.R. 202 removes an unnecessary and outdated statutory hurdle that prevents the inspector general from investigating certain misconduct at the Department of Justice, DOJ.

Current law requires the DOJ IG to refer allegations of misconduct by Department attorneys to the Office of Professional Responsibility, or OPR, rather than initiate an investigation himself. The OPR existed prior to the statutory creation of the DOJ IG in 1988. At the time DOJ IG was created, OPR retained the specific authority.

H.R. 202 seeks to harmonize the Department of Justice IG's investigative authority with the rest of the Federal inspectors general who are not similarly restricted. Congress and this committee have consistently supported the need for independent and transparent oversight of Federal agencies and programs. The current bifurcation of investigative authority at DOJ is inconsistent with this committee's history of supporting the notion of an unencumbered IG.

The DOJ IG is not without its own oversight. The IG is confirmed by the Senate, accountable to the public, and is only removable by the President after notification to Congress. Further, the IG has statutory reporting obligations to both agency leadership and Congress.

The OPR, in contrast, lacks such independence from the agency it is obligated to investigate. The director of OPR is selected and appointed by the attorney general, answers to the attorney general, and can be removed or disciplined only by the attorney general. The IG's independence is critical to the value of their work.

Also critical to the value of the IG's work is transparency. The IG maintains transparency by publishing its reports on a public website. The website also contains information about the IG's operations and functions and a full archive of completed and ongoing work. This standard of transparency does not apply to OPR. Adverse findings by OPR against a DOJ lawyer are subject to review by the Department's leadership and can be overruled by the Department's leadership without any transparency.

It is important to note that this division of authority is a unique situation amongst the Federal IG community. The need for this legislation has also been discussed in multiple hearings before the Oversight and Reform Committee and in reports by watchdog groups.

The DOJ IG, Michael Horowitz, testified before the Oversight and Reform Committee on the importance of eliminating this discrepancy. Congress's own watchdog, the Government Accountability Office, has issued reports with recommendations to empower the DOJ IG.

This is a good bill, Madam Speaker, and I urge my colleagues to support it. With that, I reserve the balance of my time.

Madam Speaker, again, I urge the adoption of this bill, and I yield back the balance of my time.

Madam Speaker, I want to thank Chairman Cummings for bringing this important legislation to the Floor.

In 2005, shortly after Hurricane Katrina, a group of New Orleans police officers opened fire on a handful of unarmed African American civilians walking across Danziger Bridge, killing two and injuring four.

This occurred during the heart of the Hurricane Katrina aftermath and left deep scars on our community.

Years later five officers were convicted on a variety of charges for these actions.

However, their convictions were vacated in 2013 due to misconduct by Department of Justice prosecutors.

In my efforts to find out what happened and why, and to also get transparency for my constituents, I received a DOJ report that was heavily redacted and missing crucial facts.

I also learned that the DOJ Inspector General lacked the authority to investigate those actions.

The DOJ was being left to investigate itself in situations like this and the American people were being left without the full story.

That ultimately led to the victims and their families never receiving the full measure of justice they were owed.

This bill grants the Office of the Inspector General for the Department of Justice the authority to investigate alleged misconduct committed by Department of Justice attorneys when they act in their capacity as lawyers.

Currently, the OIG has jurisdiction to review alleged misconduct by non-lawyers in the DOJ, but the DOJ's own Office of Professional Responsibility exercises jurisdiction over alleged misconduct committed by DOJ attorneys when they are litigating, investigating, or providing legal advice.

From fiscal year 2002 through fiscal year 2013, Office of Professional Responsibility documented more than 650 infractions, including allegations that federal attorneys intentionally misled courts and alleged abuses of the grand jury or indictment process.

In most of these matters--more than 400--OPR categorized the violations at the more severe end of the scale: recklessness or intentional misconduct as opposed to error or poor judgment.

However, the DOJ does not make public the names of attorneys who acted improperly or the defendants whose cases were affected. As a result, the DOJ, its lawyers, and the internal watchdog office itself are protected from meaningful public scrutiny and accountability.

This simple change in jurisdiction will ensure that people facing federal charges get a fair day in court and that the U.S. government is properly represented in disputes with corporations where taxpayer dollars are on the line.

We must ensure that innocent people are not wrongly convicted and sent to prison, and that tainted cases do not cause convictions of guilty parties to be thrown out.

With stakes as high as these, it is essential that DOJ attorneys be held to highest possible standards of accountability.

While the Office of Professional Responsibility's investigations and actions are notorious for their secrecy, the OIG's independence and transparency will enhance the public's confidence in DOJ's operations.

For these reasons, and for the victims of the Danziger Bridge shootings and their families, I encourage my colleagues to support this commonsense legislation.

Madam Speaker, I thank the gentleman for yielding.

Madam Speaker, I rise today to urge Congress to pass the Inspector General Access Act of 2019. This act, I am pleased to underscore, enjoys broad bipartisan support from this body now and has in the past, but its approval is more urgent now.

The actions, for example, of former U.S. Attorney Alex Acosta have drawn intense scrutiny since new revelations surrounding a plea deal he offered to a serial pedophile came to light.

Based on newly reported documents and a group of brave women who came forward to share their stories, it appears that Acosta gave a sweetheart deal to a wealthy and well-connected sex offender and hid it from his victims, some of whom were still in the midst of coming forward.

Acosta is now the U.S. Secretary of Labor, a position that handles workplace harassment and sex trafficking policies, yet he has refused to discuss the new allegations. This IG Access Act would explicitly allow the Department of Justice Office of Inspector General to investigate allegations of such alleged misconduct.

It is a power that the IG office--as has been pointed out by both the chair and ranking member here, it is a power that the IG office already has when it comes to investigating allegations made against any of the DOJ's many law enforcement agents, from the Federal Bureau of Investigation to the U.S. Marshals Service.

This act has received broad bipartisan support, both in successive Congresses and from the Government Accountability Office, but because of an unusual carve-out, the DOJ's inspector general is believed to be, as the ranking member said, the only Federal agency that has no explicit power to review the conduct of its own attorneys.

If professional misconduct was involved in Acosta's handling of Jeffrey Epstein's plea deal, potentially dozens of victims of this connected multimillionaire have a right to know. Acosta's seemingly unethical decision to drastically reduce the criminal penalties against this vile sexual predator and to shield his other coconspirators is simply unacceptable.

The American people and the victims of these horrific crimes deserve to know why justice was not served in this disturbing case, and the lack of transparency still cloaking it is deeply disturbing.

Giving the DOJ's inspector general more explicit and independent power to pull back the cloak of secrecy on Acosta's sweetheart deal goes to the heart of transparency and accountability that this office stands for and that this bill would insist upon.