Bills
| 3.23.22

Should the DOJ Inspector General Have the Authority to Investigate Misconduct by DOJ Attorneys? (H.R. 202)

Do you support or oppose this bill?

What is H.R. 202?

(Updated February 19, 2020)

This bill would amend the Inspector General Act to remove the requirement that the Dept. of Justice Office of the Inspector General (DOJ IG) refer all allegations of DOJ attorney misconduct to the Office of Professional Responsibility (OPR). This gives the DOJ OIG the authority to investigate alleged misconduct by DOJ attorneys when they act in their capacity as lawyers, rather than referring these issues to OPR.

Argument in favor

The DOJ OIG hasn’t been effective at investigating DOJ attorney misconduct in the past. It’s important to hold DOJ attorneys to a high standard of conduct, and giving the DOJ IG the power to investigate alleged misconduct will help ensure this happens.

Argument opposed

The DOJ IG suffers from the same issue as the DOJ OIG — it’s still inside the DOJ. In cases of alleged DOJ attorney misconduct, it’d be better to refer cases to another agency to investigate, in order to ensure impartiality.

Impact

DOJ and the Inspector General Act of 1978.

Cost of H.R. 202

The CBO estimates that implementing this bill wouldn’t impact spending, since DOJ could implement it with existing personnel.

Additional Info

In-Depth: Rep. Cedric Richmond (D-LA) reintroduced this bill from the 115th Congress to establish greater accountability for the U.S. attorney’s office:

“By transferring the responsibility to investigate misconduct by DOJ attorneys to the DOJ-OIG, we hope to bring a greater level of transparency and accountability to DOJ operations. From 2002 through 2013, OPR documented more than 650 infractions, including allegations that federal attorneys intentionally misled courts and alleged abuses of the grand jury or indictment process. In the majority of the matters OPR categorized the violations as recklessness or intentional misconduct, as distinct from error or poor judgment.  However, DOJ does not make public the names of attorneys who acted improperly or the defendants whose cases were affected. Also, OPR’s reports are not available for public review. They are only available by FOIA request and even then they are often heavily redacted. As a result, DOJ, its lawyers, and the internal watchdog office itself are shielded from public scrutiny and responsibility. This legislation will restore public trust by providing the necessary checks and balances.”

Sen. Mike Lee (R-UT), the sponsor of a companion bill in the Senate during the 115th Congress, argues this bill is needed to empower DOJ’s IG to do its job:

“Our federal government inspectors general do a valuable job providing the information voters and lawmakers need to hold federal government agencies accountable. Unfortunately the Department of Justice OIG currently does not have the power to review the conduct of DOJ attorneys, an oversight which this legislation corrects.”

In a statement to the House Committee on Oversight and Government Reform, Michael Horowitz, Chair of the Council of the Inspectors General on Integrity and Efficacy and DOJ Inspector General, spoke in strong support of this bill:

“Unlike IGs throughout the federal government, the DOJ OIG does not have authority to investigate all allegations of misconduct within the agency we oversee. While we have jurisdiction to review alleged misconduct by non-lawyers in the Department, including agents at the Federal Bureau of Investigation, the Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco, Firearms and Explosives, under Section 8E of the IG Act, we do not have the same jurisdiction over alleged misconduct by Department attorneys when they act in their capacity as lawyers—namely, when they are litigating, investigating, or providing legal advice. In those instances, the IG Act grants exclusive investigative authority to the DOJ’s Office of Professional Responsibility, a DOJ component that lacks the same statutory independence and protections the OIG is provided by the IG Act. 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. Indeed, other federal IG are responsible for handling misconduct allegations against agency lawyers, including lawyers with prosecuting authority such as those at the Securities and Exchange Commission. I want to thank the Members of this Committee, Congressman Richmond, Congressman Hice, and Congressman Conyers, for their sponsorship of the Inspector General Access Act, H.R. 3154, which would ensure that misconduct by lawyers at the Justice Department is subject to the same independent IG oversight as is currently the case with agents and non-lawyers. I look forward to working with Congress to address this anomaly in our jurisdiction.”

This bill's 116th Congress reintroduction has the support of three bipartisan cosponsors, including two Democrats and one Republican. In the 115th Congress, this bill passed the House Committee on Oversight and Government Reform by a unanimous vote with the support of three cosponsors, including one Republican and two Democrats. There was a companion bill in the Senate, sponsored by Sens. Mike Lee (R-UT), Chuck Grassley (R-IA), and Lisa Murkowski (R-AK). Rep. Richmond previously introduced this bill in the 114th Congress.


Of Note: Rep. Richmond originally introduced this bill in 2015, after a scandal when the office of the U.S. attorney for the Eastern District of Louisiana was revealed to have leaked prejudicial trial information. After these improprieties were revealed, the OPR’s response was apparently nothing, leading Louisiana federal district court Judge Kurt D. Engelhardt to criticize the practice of having the DOJ investigate itself through OPR:

“First of all, having the DOJ investigate itself will likely only yield a delayed yet unconvincing result in which no confidence can rest. If no wrongdoing is uncovered, it will come as a surprise to no one given the conflict of interest existing between the investigator and the investigated… [The handling of this scandal] surely raises concerns about the capabilities and adequacy of DOJ’s investigatory techniques as exercised through OPR.”


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / utah778)