The Obama administration formally announced that inspectors general will have to get permission from their agency heads to gain access to grand jury, wiretap and fair credit information — an action that severely limits the watchdogs’ oversight capabilities, independence and power to uncover fraud.
An opinion, issued by the Department of Justice’s Office of Legal Counsel, says the Inspector General Act of 1978 — which was written by Congress to create the government watchdogs in order to help maintain integrity within their agencies — does not have the authority to override nondisclosure provisions in other laws, most notably in regard to grand jury, wiretap or fair credit information.
“In reaching these conclusions, our Office’s role has not been to decide what access [inspectors general] should receive as a matter of policy. Rather, we have endeavored to determine as a matter of law, using established tools of statutory construction, how best to reconcile the strong privacy protections … with the interest in access reflected in … the IG Act,” states the legal counsel’s opinion, which was dated Monday and released Thursday.
“I strongly disagree with the OLC opinion,” Michael Horowitz, the Justice Department’s inspector general, said in a statement. “Congress meant what it said when it authorized Inspectors General to independently access ‘all’ documents necessary to conduct effective oversight. Without such access, our Office’s ability to conduct its work will be significantly impaired, and it will be more difficult for us to detect and deter waste, fraud, and abuse, and to protect taxpayer dollars.”
Mr. Horowitz has had to seek former Attorney General Eric H. Holder Jr.’s permission, and now Loretta E. Lynch’s, to gain access to such material. The approval process in obtaining the materials delayed review of Operation Fast and Furious — the failed Mexican drug cartel sting that lost track of more than 1,000 government-issued guns, one of which later was used to kill a U.S. Border Patrol agent — and has delayed other reports the inspector general is set to publish.
At no point has the Justice Department denied any of Mr. Horowitz’s requests, but some in Congress have argued that requiring the inspector general to ask the attorney general for materials represents a direct conflict of interest and impairs the inspector general’s independence.
“The department has long held the position that the inspector general should have access to all the information it needs to perform its essential oversight function,” Justice Department spokeswoman Emily Pierce said. “Consistent with this view, department leadership has implemented procedures to ensure that the inspector general receives sensitive law enforcement information in a timely manner.
“Additionally, the department is committed to working with Congress and the inspector general on legislation to address any gaps in the law that may hamper the inspector general’s ability to access such information in a timely manner,” she said.
Still, those assurances don’t sit well with some lawmakers — or the IG community.
“The Office of Legal Counsel’s efforts to reduce transparency will leave the Department of Justice vulnerable to mismanagement and misconduct. This is not the type of government the American people deserve,” said Rep. Bob Goodlatte, Virginia Republican and House Judiciary Committee Chairman, in a statement to The Washington Times.
“The House Judiciary Committee will work with other committees of jurisdiction to explore a legislative fix to reiterate Congress’ intent that the Office of the Inspector General is entitled access to all documents and records within DOJ’s possession,” he said.
Mr. Goodlatte, a lawyer himself, argued the reasoning within OLC’s opinion was the same that produced the Department of Justice’s infamous recess appointments memorandum, which was unanimously rejected by the Supreme Court in 2014.
Sen. Chuck Grassley, Iowa Republican and chairman of the Senate Committee on the Judiciary, called the Office of Legal Counsel’s opinion “tortured logic,” by which “‘all records’ does not mean ‘all records.’”
“The prospect of the Obama administration using this opinion to stonewall oversight, avoid accountability and undermine the independence of inspectors general is alarming,” he warned.
Not all the Capitol Hill criticism came from Republicans or had a partisan cast though.
Rep. John Conyers Jr. of Michigan, the ranking Democrat on the House Judiciary Committee, said the Justice Department’s opinion departs from “the plain text of the statute and the intent of Congress when we drafted it.”
But, he warned, “this one memorandum hardly ends the conversation.”
“I suspect that we will work quickly, and likely with overwhelming and bipartisan majorities, to make certain that the Inspector General Act is explicit on this point,” Mr. Conyers said.
As the chairman of the inspectors general council, Mr. Horowitz has been pressing for resolution from either Congress or the OLC in clarifying his and other IGs’ authority in gaining access to agency records — repeatedly saying agencies have proactively tried to stonewall certain investigations by questioning the IG’s power.
In congressional testimony in February, Mr. Horowitz complained the FBI had failed to turn over key records in several whistleblower cases by the deadlines, saying that other laws involving national security and privacy took precedence over his investigation.
Last August, 47 federal inspectors general wrote a letter to Congress complaining about specific cases where some federal agencies such as the Peace Corps and the Environmental Protection Agency refused to hand over documents critical to their independent oversight.
Last year, Kathy Buller, the Peace Corps IG, testified to Congress her agency was refusing to hand over information related to sexual assault investigations, which she’s legislatively tasked with overseeing, because of privacy concerns.
And at the EPA, Inspector General Arthur Elkins Jr. confirmed that an EPA employee, who had been accused of sexual harassment of some 16 women since 2004, as well as the inappropriate handling of classified information, retired on the same day he was asked by EPA officials to talk to the IG staff.
“Over the years, the trust piece has been rocked,” Mr. Elkins told website Government Executive this February. In other examples at the EPA, attorney-client privilege has been invoked to get around the IG’s information request.
“There’s no question an inspector general has a difficult but important job to do, and without access to whatever records are involved in the matter the IG is auditing, it’s extremely difficult for an IG to do a thorough job,” said John Malcolm, director of The Heritage Foundation’s Center for Legal and Judicial Studies.
“The devil will be in the details of this opinion as to how debilitating it’s going to be,” he predicted.