December 21, 2015

December 21, 2015 | Commentary on Rule of Law, Legal Issues

Facing Investigations, DOJ Claims the Right to Avoid Investigations

Attorney General Loretta Lynch has no intention of reversing the Justice Department’s defiance of the Inspector General Act. She made that clear during a House Judiciary oversight hearing last month. Indeed, her own Office of Legal Counsel has issued a badly flawed opinion that insists DOJ and FBI officials can, at their discretion, withhold information from the Justice Department’s inspector general -- the individual tasked by Congress with investigating those very same officials.

This is an all too “transparent” continuation of the administration’s habit of trying to hide what the government is doing from Congress, the public, the media, and those who are supposed to be policing the executive branch.

Congress created the federal Inspector General (IG) system in the 1970s to combat problems of “waste, fraud, and abuse within designated federal departments and agencies.” Then-President Jimmy Carter said the IGs would be “the most important new tools in the fight against fraud,” and that “their ultimate responsibility is not to any individual but to the public interest.”

Only with independence and absolute access to internal information can the IGs fulfill their intended purpose. And the IG Act of 1978 could not be clearer.

Section 2 of the Act says very explicitly that IGs must be given access to “all records, reports, audits, reviews, documents, papers, recommendations, or other material” relevant to their investigative duties. Notice that Congress said that IGs are to have access to “all” records -- not just those that executive branch officials, in their infinite wisdom, decide that the IG should get.

But the Obama administration is balking, to the utter frustration of the inspectors general and members of Congress.

Earlier this year, as we explain in a new Heritage Foundation legal analysis, the DOJ Office of Legal Counsel released an opinion that DOJ officials could withhold information at their discretion from the IG. To evade audits and investigation of possible misbehavior, DOJ officials need only claim that the information sought by an IG is protected by provisions of the Federal Wiretap Act, the Federal Rules of Civil Procedure, and the Fair Credit Reporting Act.

If this DOJ opinion stands, it will entitle DOJ employees -- as well as employees of other federal agencies -- to shield their operations from IG oversight under any other federal statutes with similar non-disclosure provisions.

The DOJ opinion completely misinterprets not only these three statutes, but the IG Act itself. Developed and issued under Loretta Lynch’s watch, the opinion is contrary to the straightforward text of the IG Act and the clear legislative intent of Congress in passing it.

The opinion also dismisses Congress’ consistent reinforcement of its intent to provide IGs full access to agency information, including, most recently, a 2015 Appropriations Act. Congress was so concerned with reports from various inspectors general about the administration’s obstruction of investigations that it passed explicit language forbidding DOJ from withholding records from the IG.

In an unprecedented move, a majority of inspectors general also signed a letter protesting the administration’s actions.

It is not up to agencies to rewrite statutory policy when Congress could not be clearer in asserting that access to “all" records means all records. This administrative rewrite of major legislation runs afoul of the law and the separation of powers between the executive and legislative branches. It undermines the IGs’ ability to conduct their investigatory duties, thereby costing taxpayers time, money, and trust in their government.

DOJ’s perverse stance on this matter comes at a time when trust in government is at an all-time low. Pew Research studies show just “19% of Americans today say they can trust the government … to do what is right ‘just about always’ (3%) or ‘most of the time’ (16%).” The Department’s active obstruction of oversight will no doubt only increase distrust of the government.

Unlike many other issues today, there is no partisan divide here.

John Conyers (D-MI), the ranking Democrat on the House Judiciary Committee who voted for the 1978 IG Act, recently reaffirmed at a hearing that Congress meant “what it said” when it gave IGs access to all agency records:

"Simply put, the inspector general is to have complete and direct access to all of the information he or she deems necessary to conduct thorough and impartial investigations."

This situation would be laughable if it were not so serious. The agency watchdogs Congress created after Watergate for independent oversight of administrative waste, fraud, and abuse must now ask agency personnel for permission to get the records needed to audit or investigate them for misconduct. If the Justice Department ordered police not to investigate bank robberies without the prime suspect’s permission, wouldn’t you expect more bank robberies and fewer investigations?

Agency officials have eagerly embraced this defective opinion. Justice Department employees have already obstructed 14 inspector general investigations, the New York Times reports. The subjects of investigation have simply refused to turn over records requested by the IG.

The IGs are looking to Congress to set the Justice Department straight. But Congress has clarified that “all” means “all” so often that it is stuck in a struggle with a Justice Department that has shown an utter disdain for following the law. How can Congress fix that?

At the recent oversight hearing, Attorney General Lynch repeatedly responded to Rep. Darrell Issa’s (R-CA) questions about DOJ failure to enforce the House’s contempt citation against Lois Lerner with “Congressman, in the exercise of prosecutorial discretion that decision was made.”

Fed up with her intransigence, Rep. Issa said what seems all too obvious about not only the attorney general, but this administration as a whole:

"You have no respect for laws passed if you don’t like them … that’s what you’re testifying to today."

Loretta Lynch had no answer to that.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

This piece was co-authored by John Michael Seibler and originally appeared at PJMedia.com