Current Law Helps Shield Attorney General from Independent Review

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A government watchdog office needs authority to investigate issues related to federal prosecutions.

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In the wake of the recent controversy over President Donald J. Trump’s and U.S. Attorney General William Barr’s alleged interference in the prosecution of Roger Stone, prominent legal scholar Cass R. Sunstein has revived a Watergate-era proposal to make the U.S. Department of Justice independent of the President. Critics have dismissed Sunstein’s proposal as extreme and unlikely ever to win political support.

Whatever the merits of Sunstein’s proposal, a much simpler reform has received considerable bipartisan support for years. That reform would authorize the Justice Department’s Inspector General to investigate allegations of misconduct of the kind currently surrounding Attorney General Barr.

Right now, it appears that the only plausible way for the Department to investigate the controversy over interference in the Stone prosecution—or similar allegations of misconduct—could be through its Office of Professional Responsibility (OPR), an office that Barr controls.

As the Department’s current Inspector General, Michael E. Horowitz, has explained, his office can review allegations of misconduct involving the FBI Director, but not the Attorney General. “If an allegation of professional misconduct is made against the Attorney General, it is handled by OPR,” Horowitz has said.

The problem is that OPR lacks independence from the Attorney General. OPR’s director is selected and appointed by the Attorney General, works at the direction of the Attorney General, and can be removed or disciplined only by the Attorney General. In addition, OPR rarely publishes information about its work.

The Office of the Inspector General, by contrast, works with much greater independence from Barr. It is legislatively created to conduct independent audits and report findings both to the Attorney General and to Congress. The Inspector General is nominated by the President, confirmed by the U.S. Senate, and cannot be removed by the Attorney General. The President has the power to remove the Inspector General, but only after first giving Congress at least thirty days advance notice and providing reasons for the removal.

Because of the distinctive independent status of an office of inspector general, every other federal agency’s inspector general office has the authority to investigate misconduct by all employees of the agency they oversee—including the head of the agency.

The Justice Department’s Inspector General similarly can investigate misconduct throughout its agency—but with one significant exception. The Inspector General must refer to OPR any allegations of misconduct involving Department lawyers “where the allegations relate to the exercise of the authority of an attorney to investigate, litigate, or provide legal advice.”

It is this exception that protects Attorney General Barr from independent review under most circumstances—including the allegations related to the Stone prosecution. It is also what previously prevented the Justice Department’s Inspector General from examining Barr’s handling of Special Counsel Robert S. Mueller’s report.

The exception from Inspector General oversight for matters related to prosecution extends well beyond the Attorney General. The Inspector General could not comply, for example, with a congressional request to investigate the circumstances surrounding the decision of former Secretary of Labor Alexander Acosta during his time as U.S. Attorney of the Southern District of Florida to enter into a non-prosecution agreement with convicted sex offender Jeffrey Epstein.

In 1994, the U.S. Government Accountability Office (GAO) determined that preventing the Inspector General from investigating attorney misconduct was inconsistent with what Congress envisioned under the Inspector General Act of 1978 (IG Act). GAO rejected the Justice Department’s assertion that the Inspector General would be “institutionally less capable” of reviewing prosecutions and less able to “safeguard the information needed to conduct them.” GAO recommended that Congress remove the limitation.

Today, a bill doing just that has been referred to the Senate Committee on the Judiciary after passing the U.S. House of Representatives in January 2019. Despite strong bipartisan support for the bill, the Senate committee has not yet considered it. Identical legislation, introduced in the past two Congresses, won bipartisan support too—but also never left the Senate committee.

Inspector General Horowitz supports the legislation. Eliminating the jurisdictional limitation has long been a top priority for his office. Yet, according to Horowitz, the Justice Department itself opposes expanding the Inspector General’s authority to investigate attorneys.

In fact, the Justice Department has a long history of resisting the idea of independent oversight by an Inspector General.

When Congress initially passed the IG Act following the Watergate scandal, it established independent offices of inspectors general throughout the federal government. But that original legislation—at the urging of the Justice Department—initially exempted the Justice Department entirely, leaving it with no Inspector General at all.

After further studies and hearings, the House was convinced of the need for such a role at the Justice Department. On four occasions over the course of a decade, the House acted to extend the IG Act to the Justice Department. The Senate declined to act in all four instances.

Each time the House acted, the Justice Department had strongly objected, arguing that legislation creating an independent Inspector General by legislation would undermine the authority of the Attorney General, interfere with the Department’s work, and risk sensitive or classified information.

Yet, despite the Department’s steadfast reservations, Congress also remained determined to act. In 1988, Congress and the Department struck a compromise. Congress established an independent Inspector General office within the Justice Department, but one with only limited powers.

Despite differing views over exactly how to define those limited powers, Congress eventually “acceded” to the Justice Department’s request that OPR remain a separate unit under the Attorney General’s control which would have sole authority to investigate matters related to prosecutions.

Today, there exists no independent institution within the Justice Department dedicated to overseeing the integrity of the federal prosecutorial system.

But support appears to be growing to give the Inspector General just this authority. Senator Mike Lee (R-Utah) and other Republicans have introduced in the Senate a bill, identical to one that has passed in the House, which would remove the current exception to the Justice Department’s Inspector General’s responsibilities.

With over 2,600 former Justice Department officials calling upon Barr to resign—and with all of the Democratic members of the Senate Judiciary Committee recently calling for an inquiry into Barr’s alleged politicization of the Department—the time appears to have come for Congress to authorize the Inspector General to investigate prosecutorial misconduct, including political interference by the Attorney General.