When does “all” not mean “all”? Watchdogs throughout the federal government are confronting this question in the wake of new legal opinion at the Department of Justice.
In 1978, following a series of procurement scandals, Congress passed the Inspector General Act to combat waste, fraud, and abuse. The law created Offices of Inspectors General (OIGs) to oversee federal agencies and serve as the “eyes and ears” of Congress within the executive branch. It also granted these offices “access to all records, reports, audits, reviews, documents, papers, recommendations, or other material” related to the IG’s responsibilities. Since then, the language about access to records had not been touched by amendments.
Though OIGs occasionally faced resistance to getting documents in the past, in 2010 the DOJ IG’s office began to have its access restricted more formally. In the following years, DOJ and other agencies began vetting and redacting sensitive documents before giving them to IG Offices, increasing the amount of time it took for IGs to receive those documents and slowing down the oversight process. Last month, the Office of Legal Counsel (OLC), a DOJ office that provides legal advice to the executive branch, handed down an opinion that said the DOJ OIG does not have unfettered access to all of the agency’s documents. In essence, the opinion meant that all doesn’t mean all.
In a Senate Judiciary Committee hearing Wednesday, which Senator John Cornyn (R-TX) called “maybe one of the most important hearings we’ve had in the United States Congress in a long, long time,” Senators and witnesses alike were struck by OLC’s ruling and the hoops that OIGs have had to jump through in recent years. Agreement was nearly unanimous that OLC’s opinion was wrong and would have deleterious effects on oversight, and that OIGs should not face restrictions on the documents they are able to access.
In response to a question from Senator Thom Tillis (R-NC) about the effects of the OLC opinion, Justice Department IG Michael Horowitz said, “employees throughout the government who aren’t lawyers, who’ve identified waste, fraud, abuse, mismanagement, that want to come to us with information…have to wonder, what does that [OLC] opinion mean for me? And if I come to the Inspector General for my agency, will I later be retaliated against if I do that?”
Danielle Brian of the Project On Government Oversight noted a similar “chilling effect on whistleblowers at the FBI, DEA, and other offices who would want to provide the IG with evidence of wrongdoing in sensitive operations” that OLC’s opinion could have. She went on to say that, “if followed, the OLC opinion would also thwart the IG’s ability to investigate whistleblower claims of retaliation, as was the case when the FBI delayed the OIG access to records in two recent whistleblower reprisal investigations.”
Paul Light, a professor at New York University’s Wagner Graduate School of Public Service and expert on the legislative record of the IG Act, testified that “point blank, the OLC opinion is wrong. Absolutely wrong.” Former Senator John Glenn (D-OH), an architect of the IG Act and subsequent amendments, recently wrote a letter to Congress reaffirming that IGs are entitled to unfettered access.
When Kevin Perkins, the FBI’s Associate Deputy Director, stated in the hearing that the FBI “has provided nearly 400,000 pages of documents and 136,000 emails to the IG in the past year alone,” Committee Chairman Chuck Grassley (R-IA) responded by saying, “I appreciate all of the statistics you gave us, but mathematically, all of those don't equal A-L-L.”
Even DOJ didn’t defend OLC’s ruling. Carlos Uriarte, the Associate Deputy Attorney General, said DOJ is “very committed to working with Congress on a legislative solution,” and does not “want to be in a position of having to deal with these issues. We think [the IG] should get everything he needs and erase any question about his independence. Absolutely.”
OLC did not provide a witness to testify on the office’s behalf.
During the hearing, other threats to effective oversight were also discussed. Senator Cornyn brought up long-standing vacancies at IG offices, using the Department of Veterans Affairs vacancy as a prime example (something POGO has reported on and testified about extensively). “The President has continuously failed to appoint Inspectors General in a timely fashion… despite letters from Congress urging him to do so,” Cornyn said. “If any agency is in need of an Inspector General, it’s the scandal-ridden VA.”
In her written statement, Brian highlighted an additional barrier to the DOJ OIG’s authority: a different office at DOJ—the Office of Professional Responsibility (OPR)—that has been given the exclusive authority to investigate allegations of prosecutorial misconduct by DOJ attorneys. Brian was especially concerned that OPR, which has documented hundreds of cases of recklessness or intentional misconduct by DOJ attorneys over the past decade, “does not release identifying information in its records…meaning we have no way of knowing if anyone was held accountable” for misconduct investigated by that office. (For more information on OPR, check out POGO’s 2014 report and a related blog post). It should be noted that OIGs are not perfect in this regard either. They do not always name names, and sometimes don’t post their reports at all. POGO and its allies have called on the DOJ OIG and other watchdogs to release even more information when they substantiate allegations of wrongdoing, especially misconduct committed by senior officials.
At the close of the hearing, POGO had several additional recommendations that it shared with the committee. We recommended clarifying that “all” means “all” in the Inspector General Act, giving the DOJ OIG more authority to investigate misconduct by DOJ prosecutors (as was proposed in a bipartisan bill co-sponsored by a member of the Judiciary Committee, Senator Mike Lee (R-UT)), and removing other barriers to IG access, such as giving watchdogs and their agencies the ability to share their data systems to better detect and recover improper payments. We urge Congress to pass a bipartisan IG empowerment bill co-sponsored by Chairman Grassley that would go a long way towards making these watchdogs more independent and effective.