[Congressional Record Volume 164, Number 188 (Thursday, November 29, 2018)]
[House]
[Pages H9717-H9720]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  INSPECTOR GENERAL ACCESS ACT OF 2017

  Mr. COMER. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 3154) to amend the Inspector General Act of 1978 relative to the 
powers of the Department of Justice Inspector General.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 3154

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Inspector General Access Act 
     of 2017''.

     SEC. 2. INVESTIGATIONS OF DEPARTMENT OF JUSTICE PERSONNEL.

       Section 8E of the Inspector General Act of 1978 (5 U.S.C. 
     App.) is amended--
       (1) in subsection (b)--
       (A) in paragraph (2), by striking ``and paragraph (3)'';
       (B) by striking paragraph (3);
       (C) by redesignating paragraphs (4) and (5) as paragraphs 
     (3) and (4), respectively; and
       (D) in paragraph (4), as redesignated, by striking 
     ``paragraph (4)'' and inserting ``paragraph (3)''; and
       (2) in subsection (d), by striking ``, except with respect 
     to allegations described in subsection (b)(3),''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Kentucky (Mr. Comer) and the gentlewoman from New York (Mrs. Carolyn B. 
Maloney) each will control 20 minutes.
  The Chair recognizes the gentleman from Kentucky.


                             General Leave

  Mr. COMER. Mr. Speaker, I ask unanimous consent that all Members

[[Page H9718]]

may have 5 legislative days in which to revise and extend their remarks 
and include extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Kentucky?
  There was no objection.
  Mr. COMER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise today in support of H.R. 3154 introduced by 
Congressman Richmond of Louisiana.
  Inspectors general perform a critical oversight function with regard 
to misconduct at their respective agencies. The Oversight and 
Government Reform Committee has long pushed for IGs to have timely and 
complete access to all the information they need to fulfill their 
oversight and investigative functions.
  In continuance of that mission, H.R. 3154 removes an outdated statute 
that prevents the inspector general from investigating certain 
misconduct at the Justice Department.
  Under current statute, the DOJ IG must refer allegations of 
misconduct by Department attorneys to the Office of Professional 
Responsibility, or OPR, rather than initiate an investigation himself.
  The OPR existed prior to the creation of the DOJ IG in 1988, and OPR 
retained this specific authority when the DOJ IG was created.
  H.R. 3154 seeks to harmonize the DOJ inspector general's 
investigative authority with that of the rest of the Federal inspectors 
general, who are not similarly restricted. The bill repeals the 
provision requiring the IG to refer allegations of attorney misconduct 
to OPR.
  Congress and, in particular, the Oversight and Government Reform 
Committee have consistently supported the need for independent and 
transparent oversight of Federal agencies and programs.
  The current division of investigative authority at DOJ is 
inconsistent with the committee's history of supporting the notion of 
an unburdened IG.
  The IG is confirmed by the Senate, is accountable to the public, and 
only can be removed by the President after notification to Congress. 
Further, the IG has statutory reporting obligations to both agency 
leadership and Congress.
  In contrast, the Director of OPR is selected and appointed by the 
Attorney General, answers to the Attorney General, and can be removed 
or disciplined by the Attorney General.
  The IG's independence is critical to the value of their work.
  The IG maintains transparency by publishing its reports on a public 
website. The website contains information about the reports, 
operations, and functions of the IG, including a full archive of its 
completed reports and its ongoing work. This standard of transparency 
does not apply to OPR.
  Adverse findings by OPR against a DOJ lawyer are subject to review by 
the Department's leadership and can be overruled by the Department's 
leadership without any transparency.
  It is important to note that this division of authority is a unique 
situation in the Federal IG community. For instance, the Securities and 
Exchange Commission Office of Inspector General is responsible for 
handling misconduct allegations against SEC lawyers, including those 
with prosecuting authority.
  The need for this legislation has also been discussed in multiple 
hearings before our committee and in reports by watchdog groups. The 
DOJ IG, Michael Horowitz, testified before this committee most recently 
on November 15, 2017, about the importance of eliminating this 
discrepancy.
  Congress' own watchdog, the Government Accountability Office, has 
issued reports with recommendations to empower the DOJ IG.
  Mr. Speaker, I urge my colleagues to support this bill, and I reserve 
the balance of my time.
  Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I yield myself as 
much time as I may consume.
  Mr. Speaker, I rise in strong support of H.R. 3154, the Inspector 
General Access Act.
  Mr. Speaker, I thank Representatives Richmond, Hice, and Lynch for 
the bipartisan manner in which they worked on this very important bill.
  The Inspector General Access Act would allow the IG of the Department 
of Justice to investigate allegations of misconduct by Department 
attorneys. The IG is statutorily independent and currently has the 
authority to investigate other DOJ personnel, but is barred from 
pursuing appropriate investigations into the attorneys at the 
Department.
  Under current law, the authority to investigate attorneys is 
restricted to the Office of Professional Responsibility within DOJ. OPR 
is not statutorily independent; its head is not Senate confirmed like 
the IG; and treating attorneys differently from other personnel is 
unfair.
  One year ago, Michael Horowitz, the inspector general at the 
Department of Justice, testified before the Committee on Oversight and 
Government Reform: ``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.''
  Mr. Speaker, I include in the Record the letter from Mr. Horowitz 
expressing his strong support for this bill before us today.
                                       U.S. Department of Justice,


                              Office of the Inspector General,

                                                November 29, 2018.
     Hon. Trey Gowdy,
     Chairman, Committee on Oversight and Government Reform, House 
         of Representatives, Washington, DC.
     Hon. Elijah E. Cummings,
     Ranking Member, Committee on Oversight and Government Reform, 
         House of Representatives, Washington, DC.
       Dear Mr. Chairman and Ranking Member Cummings: I write to 
     express my strong support for H.R. 3154, the ``Inspector 
     General Access Act of 2017'' (Access Act), which your 
     Committee approved unanimously on September 27, 2018. The 
     Access Act would amend the Inspector General Act (IG Act) to 
     provide the Department of Justice (DOJ) Office of the 
     Inspector General (OIG) with authority to investigate 
     allegations of misconduct against DOJ attorneys for their 
     actions as lawyers, just as the OIG has authority under the 
     IG Act to investigate allegations of misconduct made against 
     any non-lawyer in the Department, including law enforcement 
     agents at the Federal Bureau of Investigation (FBI), the Drug 
     Enforcement Administration (DEA), the Bureau of Alcohol, 
     Tobacco, Firearms and Explosives (ATF), and the U.S. Marshals 
     Service (USMS). Currently, under Section 8E of the Inspector 
     General Act, the OIG does not have the authority to 
     investigate allegations of misconduct made against DOJ 
     attorneys acting in their capacity as lawyers; this role is 
     reserved exclusively for the Department's Office of 
     Professional Responsibility (OPR).
       The Access Act has received broad, bipartisan support over 
     successive Congresses because it promotes independent 
     oversight, transparency, and accountability within DOJ and 
     for all of its employees. For these same reasons, in 1994, 
     the then-General Accounting Office, now the Government 
     Accountability Office (GAO), issued a report that found that 
     preventing the OIG from investigating attorney misconduct was 
     inconsistent with the independence and accountability that 
     Congress envisioned under the IG Act.
       The OIG has long questioned this carve-out because OPR 
     lacks statutory independence and does not regularly release 
     its reports and conclusions to the public. Moreover, to our 
     knowledge, the DOJ Inspector General is the only Inspector 
     General in the entire federal government that does not have 
     the authority to investigate alleged professional misconduct 
     by attorneys who work in the agency it oversees. Providing 
     the OIG with authority to exercise jurisdiction in attorney 
     professional misconduct cases would enhance the public's 
     confidence in the outcomes of these investigations and 
     provide the OIG with the same authority as every other 
     Inspector General.
     Alleged professional misconduct by DOJ prosecutors, like any 
         alleged misconduct by DOJ agents, should be subject to 
         statutorily independent oversight.
       Over fifteen years ago, the Department and Congress 
     recognized the importance of statutorily independent OIG 
     oversight over all DOJ law enforcement components (FBI, DEA, 
     USMS, and ATF) when Attorney General Ashcroft authorized the 
     OIG to conduct additional law enforcement oversight in 2001 
     and Congress legislated it in 2002. Yet, allegations against 
     Department prosecutors for professional misconduct continue 
     to be handled exclusively by OPR. As a result, presently, if 
     an allegation of misconduct is made against the FBI Director, 
     it is reviewed by the OIG; by contrast, if an allegation of 
     professional misconduct is made against the Attorney General, 
     it is handled by OPR, a Departmental component that the 
     Attorney General supervises.

[[Page H9719]]

       The rationale supporting independent oversight for alleged 
     misconduct by law enforcement applies with equal force to 
     alleged wrongdoing by federal prosecutors, regardless of the 
     nature of the alleged misconduct. There is no principled 
     reason to have two standards of oversight at DOJ--one for 
     federal agents, who are subject to statutorily independent 
     and transparent oversight by the OIG, and one for federal 
     prosecutors, who are not for allegations of professional 
     misconduct. This is particularly true given the extraordinary 
     power that Department lawyers have to charge individuals with 
     crimes, to seek incarceration, and to pursue the seizure of 
     assets and property.
       The OIG's independence, established by statutory 
     authorities and protections, facilitates objective and 
     credible investigations of misconduct allegations, as well as 
     unbiased reports that identify and make useful 
     recommendations for improving the Department. The OIG is 
     headed by a Senate-confirmed Inspector General who can only 
     be removed by the President, with prior notice to Congress. 
     The OIG's statutory independence is bolstered by the OIG's 
     dual obligation to report findings and concerns both to the 
     Attorney General and to Congress. The independent OIG is able 
     to make critical investigative and audit findings without 
     fear of reprisal.
       Conversely, OPR has no statutory independence or 
     protections. The OPR Counsel is appointed by and answers to 
     the Attorney General, and can be removed or disciplined by 
     the Attorney General. Although a November 27, 2018 letter 
     from DOJ's Office of Legislative Affairs (OLA) on H.R. 3154 
     states that ``OPR has always acted independently,'' it does 
     not point to any protections, statutory or otherwise, that 
     exist to ensure OPR's independence from the Attorney General, 
     nor has DOJ proposed strengthening OPR's independence by 
     adding such protections. Indeed, the letter fails to explain 
     or even address why DOJ believes it is better to have a non-
     statutorily independent entity handle attorney professional 
     misconduct cases rather than a statutorily independent 
     organization, as is the case for law enforcement professional 
     misconduct allegations.
     The OIG's independent and transparent oversight enhances the 
         public's confidence in the DOJ's programs and improves 
         its operations.
       In addition to independence, the OIG considers transparency 
     a crucial component of its oversight mission. With limited 
     exceptions, the OIG ensures that the public is aware of the 
     results of our work. The majority of our reports are posted 
     on our public website at the time of release to ensure that 
     Congress and the public are informed of our findings, in a 
     comprehensive and timely manner. The OIG, consistent with the 
     IG Act, publishes on our website summaries of investigations 
     resulting in findings of administrative misconduct by senior 
     government employees and in matters of public interest even 
     when the subject is not prosecuted. We post such summaries 
     without identifying the investigative subject consistent with 
     the legal requirements under the Privacy Act. Because of this 
     commitment to transparency, there are currently hundreds of 
     OIG reports, audits, and reviews posted on our web site. 
     There are also summaries of dozens of OIG investigative 
     reports posted, including recent reports involving 
     significant misconduct by senior DOJ officials.
       In contrast, there are currently only a total of five 
     reports (other than annual reports) posted on OPR's website. 
     Four of those five reports are from 2008 and were the result 
     of OPR's joint work with the OIG, and which the OIG posted on 
     our website consistent with the IG Act and our practice. The 
     fifth report was completed by OPR in 2013 and only released 
     in 2015 in response to a Freedom of Information Act (FOIA) 
     request. Moreover, although the OLA letter states that ``OPR 
     discloses a substantial amount of information about its work 
     and findings in its annual report,'' this information is not 
     reported in a timely or comprehensive manner. Congress and 
     the public only find out about some, but not necessarily all, 
     of OPR's work when it issues an annual report.
       An example of this dichotomy can be found in a case 
     involving an Oregon lawyer who was arrested by the FBI and 
     wrongly imprisoned after mismatched fingerprints linked him 
     to the 2004 bombing at a Madrid train station. The OIG 
     investigated the allegations of FBI agent misconduct, while 
     the Department's OPR investigated the allegations of attorney 
     misconduct. This bifurcation led to inconsistent treatment. 
     The OIG report on the actions of the FBI agents was published 
     on the OIG's website, but OPR did not publish the report on 
     the conduct of the DOJ attorneys who were involved in the 
     same case.
       Transparency ensures greater accountability, and sends an 
     important deterrent message to other Department employees. 
     The credibility of the Department's disciplinary process is 
     inevitably reduced when the responsible component operates 
     under the direction of the Department's senior leadership and 
     is not subject to public scrutiny because of limited 
     transparency.
     The OIG has demonstrated its excellence in reviewing complex 
         legal and factual issues, including employee ethics and 
         misconduct matters.
       Over the past 30 years, the OIG has shown that it is 
     capable of fair and independent oversight of the DOJ. The 
     jurisdictional limitation of Section 8E(b)(3) is an 
     unnecessary historical vestige of the fact that OPR was in 
     existence prior to the statutory creation of the OIG in 1988. 
     Those who unsuccessfully tried in 2002 to forestall Congress 
     from providing the OIG with oversight of alleged misconduct 
     by FBI and DEA agents contended that those cases required 
     specialized expertise--just like the Department argues 
     currently that prosecutorial oversight requires specialized 
     expertise--and that argument was roundly rejected and has 
     proven to be entirely without merit. The decision by Congress 
     to extend OIG jurisdiction in 2002 to encompass misconduct by 
     FBI and DEA agents has allowed for significant and important 
     oversight of DOJ's law enforcement operations, and has had 
     significant positive impact on the integrity of those 
     agencies' operations.
       The OIG has consistently demonstrated our ability to handle 
     complex legal and factual issues related to our misconduct 
     reviews, including those involving FBI and DEA agents as well 
     as, on occasion, ethics issues involving DOJ lawyers. In 
     addition to our recent investigation of the FBI's actions 
     prior to the 2016 presidential election, which involved 
     evaluating the professional conduct by FBI agents, FBI 
     lawyers, and FBI senior officials, we have investigated the 
     FBI's actions involving its former agent Robert Hanssen, the 
     FBI's activities related to James ``Whitey'' Bulger, the 
     DEA's oversight of its confidential informant program, the 
     DEA and other components' handling of sexual misconduct and 
     harassment cases, the operation of the FBI laboratory, ATF's 
     actions involving Operation Fast and Furious, and the FBI's 
     use of its national security authorities (National Security 
     Letters, Patriot Act Section 215, FISA Amendment Act Section 
     702).
       Each of those and many other reviews resulted in 
     independent and transparent findings by the OIG, and resulted 
     in changes to Department operations that enhanced their 
     effectiveness and thereby increased the public's confidence 
     in those programs. Moreover, OIGs throughout the government, 
     including at the Department of Homeland Security and the 
     Securities and Exchange Commission, have authority to 
     investigate misconduct allegations made against attorneys at 
     those agencies and they have demonstrated that they are fully 
     capable of dealing with such matters covering a wide range of 
     complex legal issues. The DOJ OIG is the only OIG, to our 
     knowledge, that is barred by the IG Act from reviewing 
     misconduct by lawyers within the agency it oversees.
     The Access Act would provide the OIG with oversight over 
         Department lawyers in a manner that is entirely 
         consistent with its oversight authority over Department 
         non-attorneys.
       The present oversight system that applies to allegations 
     made against any DOJ non-lawyer, as provided for in the IG 
     Act and Department regulations, is precisely the oversight 
     mechanism that the Access Act seeks to apply to Department 
     lawyers. Specifically, under the current system for DOJ non-
     lawyers, all non-frivolous misconduct allegations must be 
     provided to the OIG for the OIG's review and determination as 
     to whether it is of the type and nature that warrants and 
     necessitates independent OIG investigation. Given the OIG's 
     limited resources, the OIG handles only those allegations 
     that warrant an independent OIG investigation, and therefore 
     the OIG returns routine and less serious misconduct 
     allegations to Department components, such as the FBI's 
     Inspections Division and the DEA's OPR, for their handling 
     and investigation. For those matters that the OIG retains, 
     when the OIG completes its investigation, it sends its report 
     to the component so that it can adjudicate the OIG's findings 
     and take disciplinary action, as appropriate. The Access Act 
     creates a similar practice, by maintaining the Department's 
     OPR to handle misconduct allegations that do not require 
     independent outside review as determined by the OIG, much as 
     the internal affairs offices at the FBI, DEA, ATF, and USMS 
     remain in place today.
       We are unaware of any claims by Department leaders that 
     this approach has resulted in ``different investigative 
     standards,'' ``decrease[d] efficiency,'' or ``inconsistent 
     application'' of legal standards. There is no evidence that 
     it has impacted the components ``ability to successfully 
     defend any significant discipline decision before the Merit 
     Systems Protection Board.'' Yet this parade of horribles is 
     precisely what the OLA letter claims will occur if attorneys 
     are treated in the same manner as Special Agents and non-
     attorneys at the Department, rather than continuing to 
     receive the special oversight treatment granted to them under 
     the current carve-out provision under the IG Act. This 
     argument it meritless. Indeed, the disciplinary processes at 
     the FBI and the DEA have substantially improved since the OIG 
     obtained statutory oversight authority over those components 
     in 2002, in significant part due to the greater transparency 
     and accountability that has resulted from the OIG's 
     oversight.
       I very much appreciate your strong support for my Office 
     and for Inspectors General throughout the federal government.
           Sincerely,
                                              Michael E. Horowitz,
                                                Inspector General.

  Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, H.R. 3154 would not 
prohibit OPR from investigating attorneys. It would simply add the 
ability to investigate attorneys when appropriate

[[Page H9720]]

in the IG's authority, an additional layer of accountability.
  Empowering IGs has been, and should continue to be, a nonpartisan 
issue.
  The Committee on Oversight and Government Reform relies on the work 
of IGs, and we strongly support ensuring they can do their jobs 
effectively.
  This bill was ordered reported by the Oversight Committee 
unanimously. I urge my colleagues to continue their support for IGs by 
supporting the Inspector General Access Act.
  Mr. Speaker, I yield back the balance of my time.
  Mr. COMER. Mr. Speaker, I urge adoption of the bill, and I yield back 
the balance of my time
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Kentucky (Mr. Comer) that the House suspend the rules 
and pass the bill, H.R. 3154.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

                          ____________________